Boggess Realty Co. v. Miller

• Decision Date: 12 February 1929
• Citation: 227 Ky. 813,14 S.W.2d 140
• Parties: BOGGESS REALTY CO. v. MILLER et al.
• Court: Kentucky Court of Appeals

14 S.W.2d 140

227 Ky. 813

BOGGESS REALTY CO. v. MILLER et al.

Court of Appeals of Kentucky

February 12, 1929

Appeal from Circuit Court, Jefferson County; Common Pleas Branch Second Division.

Action by the Boggess Realty Company against Effie Miller and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Oldham Clark and Beckham, Hamilton & Beckham, all of Louisville (Joseph W. Cambron, of Louisville, of counsel), for appellant.

O'Neal & O'Neal, of Louisville, for appellees.

LOGAN J.

A contract was entered into between the appellant and the appellees which is in terms as follows: "I hereby authorize and empower the Boggess Realty Company or any of its agents, to sell the property above described for the sum of $25,000.00. In the event of sale being made, I agree to promptly pay a commission of five per cent. of the selling price. The selling price must be agreeable to me. This contract to be sole and exclusive for three months and thereafter until sixty days written notice has been given. In the event of sale by other parties, I agree to pay a commission of five per cent. to the Boggess Realty Company."

This contract was signed on January 21, 1926. On February 23 1926, the appellees gave the appellant notice that the contract should be terminated at the end of 3 months from its date. Thereafter, that is, after the 3 months had expired the appellees with out the assistance of any real estate agent sold the property. This took place on May 14, 1926. They refused to pay appellant a commission. It instituted suit against them, and the lower court at the conclusion of all of the evidence sustained the motion of the appellees that an instruction be given to the jury directing it to return a verdict in their favor. The appellant insists that the contract was binding and that a proper interpretation of its terms means that it was to have the exclusive privilege of selling the property for a period of 5 months from the date of the contract. It is true that appellant advertised the property for sale after the contract was made, and that he took prospective purchasers to the property and in that manner incurred expenses. We are willing to accept as correct its contention that the contract was a binding obligation on the parties during the period it was to run by its terms. Whether it was to run 3 months or for 3 months and 60 days thereafter is a different question.

The general rule is that a contract giving a broker the exclusive privilege to sell property during a definite and fixed time prohibits the sale of the property by any other person during the time, including the owner of the property, and if it is sold by another person, including the owner, the broker holding the contract is entitled to the commission provided in the contract. If, however, the contract is only an exclusive agency to sell the property during the period of the contract, it does not prohibit the owner's selling the property during the life of the contract, as such a contract...