Brannen v. Poole

• Decision Date: 02 February 1920
• Docket Number: 150
• Citation: Brannen v. Poole, 218 S.W. 186, 142 Ark. 48 (Ark. 1920)
• Parties: BRANNEN v. POOLE
• Court: Arkansas Supreme Court

218 S.W. 186

142 Ark. 48

BRANNEN v. POOLE

No. 150

Supreme Court of Arkansas

February 2, 1920

Appeal from Pulaski Circuit Court, Third Division; G. W. Hendricks Judge; affirmed.

Judgment affirmed.

J. A Watkins, for appellant.

Poole was not exempt from service of a summons in this case and the court properly directed a verdict for appellee. 45 L. R. A 613; 126 Ark. 398; 53 Id. 51; 76 Id. 376. The sale was brought about and procured by the efforts and labors of appellant and under the law he was entitled to recover the commission. Cases supra. See also 23 L. R. A. 632.

Mehaffy, Donham & Mehaffy, for appellee.

1. Appellee was not exempt from service of a summons and 126 Ark. 389 is not in point. 2 R. C. L. 482.

2. Brannen did absolutely nothing to bring about or procure the sale, and the evidence is clear that he did not earn the commission. 4 R. C. L. 305; 116 Ark. 273; 112 Id. 227; 122 Ark. 258; 91 Id. 212; 55 Id. 574; 121 Id. 536.

OPINION

MCCULLOCH, C. J.

Appellant instituted this action against appellee to recover broker's commission on a sale of real estate under an alleged contract whereby appellee employed appellant to procure a purchaser for the land. There was a trial of the issues before a jury, but the court directed a verdict in favor of appellee.

The only question presented, therefore, is whether or not there was sufficient evidence to warrant a submission of the issue to the jury.

Appellee was the owner of an undivided one-fifth interest in a large tract of timber land in Calhoun County, Arkansas, aggregating about 10,000 acres, and he was endeavoring on behalf of himself and his associates to sell the land. He had authority also to sell for a man named Bell another tract in the same vicinity containing about 6,000 acres. Appellant was engaged in business in the city of Little Rock, as a real estate broker, and applied to appellee for authority to sell this land. Appellee authorized appellant to sell the land at a net price of $ 16 per acre. Appellant introduced to appellee a man named Buzard, through whom there was an effort made to sell the land to the Belzoni Hardwood Lumber Company of Belzoni, Mississippi, who was represented by its agent, Mr. Brattan. Buzard was a real estate broker in Memphis, connected with a firm doing business in that city. The effort to make the sale just mentioned was not successful, but subsequently appellee sold the Bell land himself to another concern, and the 10,000 acres in which appellee was personally interested was later sold to the Calion Land & Lumber Company of St. Louis, the sale being made through Buzard and Brattan at the price of $ 15.50 per acre, and appellee paid Buzard a commission of 25 cents per acre for making the sale.

Appellant testified that he dealt with Buzard as a prospective purchaser of the land and introduced him to appellee as such. On the other hand, appellee testified that appellant introduced Buzard as his (appellant's) associate in the effort to make the sale, and told him that whatever Buzard did would be satisfactory.

We are of the opinion that the court was correct in giving the peremptory instruction to the jury, for under neither of the two theories presented by the conflicting evidence was appellant entitled to a commission. Under the contract between the parties there was no exclusive agency for the sale of the land, nor was appellant's authority given for any definite period of time. Under the terms of the contract, in order to earn a commission, appellant must, before the revocation of the authority or a sale of the land, have procured a purchaser ready, willing and able to purchase on the terms specified in the contract.

This is not a case like Simpson v. Blewitt, 110 Ark. 87, 160 S.W. 1087, where the commission could be earned either by procuring a purchaser or by procuring some one to find a...