Branch v. Moore

• Court: Arkansas Supreme Court
• Writing for the Court: BATTLE, J.
• Citation: Branch v. Moore, 105 S.W. 1178, 84 Ark. 462 (Ark. 1907)
• Decision Date: 25 November 1907
• Parties: BRANCH v. MOORE

105 S.W. 1178

84 Ark. 462

BRANCH v. MOORE

Supreme Court of Arkansas

November 25, 1907

Appeal from Howard Circuit Court; W. V. Tompkins, Special Judge affirmed.

Judgment affirmed.

Sain & Sain and W. C. Rodgers, for appellant.

1. A married man can not contract with a broker to sell his homestead unless his wife joins in the contract. Kirby's Digest, § 3901; 60 Ark. 269. Appellee will be held to have contracted with reference to the law existing at the time of the contract, 95 S.W. 481; 73 Ark. 470; 75 Ark. 435; 76 Ark. 410; 80 Ark. 108; 177 U.S. 28; 83 U.S. 310, The contract to sell being void under the law, no rights could arise thereunder in favor of appellee. 49 Kan. 777; 66 Ia 666; 42 Ia. 296; 55 Minn. 244; 108 N.W. 544.

2. The authority conferred upon appellee to sell was revocable at the will of appellant. 8 Wheat. 174; 46 Pa.St. 426; 43 Id. 212; 4 Conn. 119; 53 Pa.St. 266; 64 Ind. 548; 88 F. 709; 129 N.C. 403; 158 Ill. 428; 8 Col. 592; 2 Camp. 339; 66 L. R. A. 982; Clark & Skyles, Agency, § 157.

3. The contract vested in appellee no interest in the land. Where it is agreed that the broker may retain all over a certain amount he may sell the land for, such agreement conveys to him no interest in the land. 6 Conn. 559; 32 Cal. 609; 88 Mo 297; 53 Pa.St. 212; 64 Ill. 548.

4. Appellee could not hold the land at a higher price than the purchaser was willing to pay and then claim commission. 103 Ala. 641.

J. S. Lake and W. P. Feazel, for appellee.

1. The contract between the owner and the broker in no wise affected the homestead, and it was not necessary that the wife join therein. Moreover, appellant, having accepted the benefit of appellee's services, can not repudiate his obligations. 64 Ark. 357; 4 Am. & Eng. Enc. of L. 975.

2. The owner can not revoke his contract with a broker without compensation for services already performed. Where no time limit is fixed in the contract, and the agent has brought the owner and purchaser together, and has placed the transaction in such condition that success is practically certain, revocation will not defeat him of his commission, even though the sale is made by the owner himself. 89 Cal. 251; 2 Wash. 34; 53 Ark. 49; 23 Fla. 203; 76 Cal. 60; 81 Ark. 96; 4 Am. & Eng. Enc. of L. 979 (b), 981.

OPINION

BATTLE, J.

J. H. Moore brought this action against M. Branch to recover compensation alleged to be due him on account of a sale of land made by him for the defendant, who answers and alleges that plaintiff's authority to sell the land was revoked by him before the sale, and that the plaintiff was not entitled to any compensation. The facts in the case, as shown by the evidence adduced in the trial, are substantially as follows: "The defendant owned a farm in Howard County, in this State, which constituted his homestead, and placed it in the hands of plaintiff, a real estate agent, for sale, agreeing to accept for the same the sum of $ 2,000 net, and to allow plaintiff to hold as compensation all for which he shall sell above that sum. Plaintiff immediately thereafter entered into negotiation with D.C. Irvin for the sale of the farm, took him to it and over it, and offered to sell it to him for $ 2,250, and introduced him to defendant, they being strangers before that time. Irvin said the price was too much, but expressed himself pleased with the farm, and promised to return in a day or two to further examine it. Plaintiff says that he offered it to him for $ 2,200, but Irvin says that he does not remember it. Plaintiff testified that in a day or two after this defendant said to him: 'You needn't put yourself to any further trouble to sell my place. I don't want to sell it now, and my wife won't sign a deed.' I said: 'All right, Uncle Mike.'" Irvin testified: "I do not know why he (defendant) claimed to have taken the land out of Mr. Moore's hands except what he said. He said his wife wouldn't sign it--the bond for title." The defendant testified: "Mr. Moore did not do anything towards selling except bring Mr. Irvin out there to look at the place. The next morning I went back and asked Mr. Moore what he had done. He told me that he had not done anything; that the price was too high. I said: 'That is all right. I am glad of it. My wife said she wouldn't sign the deed if I sold it for $ 2,000.' Mr. Moore said: 'All right; I will have nothing more to do with it.' I did not have any more negotiations with him about selling the land, I told him he could drop his part and have nothing to do with the land. He said: 'All right,'" In about four days thereafter he sold the land to Irvin for $ 2,200. All these transactions occurred in the year 1906. Plaintiff testified that the land was in his hands during that year several times at different prices. "When he first put it in my hands, I think he said he wanted $ 1,400 net. This was sometime in the early part of the year 1906. He went from $ 1,400 to $ 2,000 net." This is not contradicted.

Upon these facts and evidence the court instructed the jury as follows:

"I. If you believe from the evidence that the defendant placed his land in the hands of J. H. Moore for sale, agreeing to allow him all in excess of $ 2,000 he sold the land for, as his compensation, and if you further believe that the plaintiff, Moore, carried the purchaser to the owner of the land and showed and priced same to him, and introduced him to the owner, and through such introduction and exertions on the part of Moore negotiations were begun between the purchaser and the owner of the land and a sale thereof was made by the owner of the land for the sum of $ 2,200, then Moore would be the procuring cause of said sale, and would be entitled to recover of the defendant all in excess of $ 2,000 said land sold for, unless you further believe that the agency was terminated in good faith before the sale.

"2. If you believe from the evidence that the defendant employed plaintiff to sell his land, and agreed to pay him therefor all in excess of $ 2,000 he sold the land for, defendant would not be relieved from said contract by the fact that his wife refused to sign the deed for $ 2,000.

"3. The court instructs the jury that although you may believe from the evidence that Moore consented to the withdrawal of the land from sale, still he would not be bound by such assent if it was procured through a misrepresentation on the part of Branch that Branch's wife would not sign the deed.

"4. Although Moore may have agreed with Branch that he would make no further effort or go to no further trouble to sell his land, this would not affect his right to recover in this action if the sale was the result of, or was brought about by, the previous efforts of Moore.

"5. You are instructed that if you find from the evidence that the plaintiff procured a purchaser, introduced him to the defendant, and that he, the plaintiff, was the procuring cause of the sale, then the defendant could not withdraw his land from the hands of the plaintiff and defeat the collection of the commission unless the contract between plaintiff and defendant was by mutual assent abrogated with a full understanding of all the facts.

The defendant asked the court to instruct the jury as follows: "(2) The jury are instructed that the contract in controversy could be terminated by an oral agreement between the parties. So, if you find from the evidence that the contract was verbally terminated by mutual consent, you will find for the defendant, Branch." But the court refused to give it, but amended it, and gave it as amended, as follows: "(2) The jury are instructed that the contract in controversy could be terminated by an oral agreement between the parties. So, if you find from the evidence that the contract was verbally terminated by mutual consent, with a full understanding of all the facts, your verdict should be for the defendant."

He also asked, and the court refused to give, the following instruction: "(4) The jury are instructed that the defendant, Branch, had a right to revoke the contract made with Moore for the sale of his land, and that this could be done without the surrender of the written contract." But amended it by adding the words: "But this could not be done if you believe from the evidence that Moore had procured a purchaser under the terms of his agreement;" and gave it as amended.

And the court refused to instruct the jury at the request of the defendant as follows: "(6) If the jury finds from the evidence that Moore refused to make a sale for less than $ 2,250, and that Irvin refused to give this much, he would not be entitled to recover any commission, notwithstanding Branch sold the place for $ 2,200.

"(9) The court instructs the jury that if the plaintiff, by his words or acts, induced the defendant, Branch, to act with reference to the sale of the land otherwise than he would have done but for such acts...