Benoit v. Wing, 1036
| Decision Date | 06 January 1953 |
| Docket Number | No. 1036,1036 |
| Parties | BENOIT v. WING. |
| Court | Vermont Supreme Court |
Edward G. McClallen, Jr., Rutland, for plaintiff.
Ryan, Smith & Carbine, Rutland, for defendant.
Before SHERBURNE, C. J., and JEFFORDS, CLEARY, ADAMS and CUSHING, JJ.
This is an action of contract brought by the owner of realty to recover from a real estate broker the sum of three hundred dollars paid as a commission on the sale of plaintiff's property, the prospective purchaser having refused to carry out his contract. The case was tried by the court, findings of fact were made and judgment for the defendant entered. The cause is here on the plaintiff's exception to the judgment.
The findings show in substance the following:--The defendant was a duly licensed real estate broker; the plaintiff was the owner of a house and lot in Pittsford which he had advertised for sale in the Rutland Herald; the defendant wrote the plaintiff requesting the privilege of listing the property with the right to sell it, and stating therein that 'In case of a sale my commission would be five percent of the selling price'; the plaintiff answered the letter and placed the property with the defendant to be sold for $8,000.
Subsequently the defendant secured a prospective buyer, one William Taggart. He and the plaintiff met at the defendant's house in Pittsford and after various negotiations a written agreement was entered into between the parties, one copy of which was signed by Taggart, the other by the plaintiff.
At the time of these negotiations it was agreed that the purchase price would be reduced to $7,800 and that the defendant's commission would be $300 instead of 5% of the selling price. After the signing of the agreement Taggart gave plaintiff his ckeck for $300 payable to him which plaintiff endorsed to the defendant with the statement thereon that it was in full payment of defendant's commission in the sale of the property.
On the following day Taggart notified the defendant that he had decided that he did not wish to purchase the property and that he was willing to lose the $300 deposit rather than go ahead with the trade.
The only exception being to the judgment, the question presented for this Court's determination is, do the facts found support it? Little v. Loud, 112 Vt. 299, 304, 23 A.2d 628; Dindo v. Cappelletti, 116 Vt. 403, 405, 77 A.2d 840.
To entitle a broker to a commission for the sale of property it is necessary for him to produce a person ready, willing and able to purchase it at the price and upon the terms prescribed by the owner. Oben v. Ducharme, 93 Vt. 211, 217, 106 A. 777; Dindo v. Cappelletti, supra. The findings show that the owner, broker and prospective purchaser met and discussed the matter of the sale and purchase and that terms were arrived at; a written agreement, signed by both seller and buyer, was entered into, and a deposit of $300 was made by the buyer. These acts resulted in a binding mutually enforceable contract of sale. First National Bank of St. Johnsbury, Ex'r, v. Laperle, 117 Vt. 144, 148-150, 86 A.2d 635.
It follows that the buyer having entered into a contract of sale which was enforceable against him by the seller; the broker who procured such buyer was entitled to his commission. Dindo v. Cappelletti, supra.
Plaintiff argues that the findings do not support the judgment because he claims no commission would be paid until the sale was consummated, such consummation being evidenced by the execution and delivery of a title deed and the payment of the purchase price.
The written agreement of July 12, copies of which were signed by the plaintiff and Mr. Taggart, as shown by finding No. 5 was as follows:
'It is also agreed that the sale of the property was brought about by T. D. Wing, licensed broker of Pittsford, Vermont.
'It is also agreed that the final passing of title shall take place on July 20, 1950.'
By applying the principle set forth in First National Bank of St. Johnsbury, Ex'r, v. Laperle, supra, we have held that a mutually enforceable contract was entered into. When this is accomplished the broker is entitled to his commission. The rule is not as contended for by the plaintiff. Ward v. Cobb, 148 Mass. 518, 20 N.E. 174, 12 Am.St.Rep. 587, was a case very similar to that under consideration. Plaintiff sued for a commission alleged to be due on the sale of real estate. The parties made the following contract: 'It is agreed that if Henry B. Ward, as broker, shall effect a sale of Elizabeth Cobb's estate, 855 Main Street Cambridge, he shall receive a commission of two hundred...
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