Buckner v. Tweed
| Decision Date | 16 September 1946 |
| Docket Number | No. 9128.,9128. |
| Citation | 157 F.2d 211,81 US App. DC 256 |
| Parties | BUCKNER et al. v. TWEED. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. Arthur L. Willcher, of Washington, D. C., with whom Mr. Ben Lindas, of Washington, D. C., was on the brief, for appellants.
Mr. Arthur J. Hilland, of Washington, D. C., for appellee.
Before EDGERTON, CLARK and WILBUR K. MILLER, Associate Justices.
This is an appeal by the defendants from an affirmance by the Municipal Court of Appeals for the District of Columbia of a judgment for a real estate broker in a suit for a commission. 44 A.2d 224.
Appellants had employed appellee, the broker, to find a purchaser for their property at $19,500. He procured and submitted to them a signed offer in the form of a contract, dated April 18, 1943, at a price of $16,950. This contract provided that the purchaser was to place a first trust of $11,000 on the property, pay appellants $3,500 in cash, and give them a second trust for the balance, which was $2,450. It also provided that the property was to be sold free of encumbrances. Settlement was to be in 30 days. Appellants signed this contract.
Appellee wrote on appellants' copy of the contract, but not on the purchaser's copy, an endorsement to the effect that appellants were not to pay any bonus for releasing an existing first trust. The purchaser afterwards promised to pay "not over $43" for the purpose of releasing that trust. In the view we take of the matter, we need not decide whether these variations deprived the contract of binding force as between appellants and the purchaser.
To place a first trust of $11,000 it would have been necessary to pay off an existing first trust of $6,100. The holder of the outstanding trust notes refused to accept payment, which was not yet due, but offered to increase the loan to $9,500. This was acceptable to the purchaser. The parties met on May 6, 1943 to close the sale. The purchaser proposed to execute a first trust of $9,500 and if appellants desired, to pay the entire balance of the purchase price in cash. Appellants declined this proposal, on the grounds that the contract called for a first trust of $11,000 and that no second trust to them had been prepared. Appellants nevertheless executed a deed and deposited it with the title company together with these instructions: "* * * This deed is not to be recorded unless and until the terms of the contract of sale dated April 18, 1943, are strictly complied with by the purchaser, i. e., that they place a first lien deed of trust on the property of $11,000; a $3500 cash payment; the balance secured by a deferred purchase money trust * * *." The parties agreed to meet again at the title company's office on May 18 to close the sale. On May 12 either appellee or the purchaser ordered from the title company a second trust deed of $2,450 from the purchaser to appellants. That deed was duly prepared. But on May 12 appellants withdrew their deed from the title company. At the meeting on May 18 appellants, without tendering a deed, again insisted that the purchaser secure a release of the existing first trust and place a new trust of $11,000, and refused to proceed on any other basis. As appellants state in their brief, efforts to complete the sale failed "because the existing first trust was not released, thereby making it impossible to place a new first trust for $11,000".
Appellee was entitled to a commission if he produced a purchaser ready, willing and able to buy upon appellants' terms. A material deviation from those terms would defeat appellee's claim.1 The contract of April 18 as modified by the endorsement on appellants' copy, whether or not the contract was valid as between appellants and the purchaser, stated appellants' terms. The question is whether the plan which the purchaser was ready to carry out did or did not deviate materially from those terms.
If the terms of the contract with its endorsement had been strictly carried out, appellants would have received (1) $3,500 in cash provided by the purchaser; (2) $4,900 additional cash, consisting of the difference between the existing $6,100 first trust and the proceeds of a new $11,000 first trust; and (3) a $2,450 second trust subordinate to an $11,000 first trust. By the plan which the purchaser was ready to carry out appellants would have received (1) $3,500 in cash provided by the purchaser; (2) $4,900 additional cash, consisting of (a) the $3,400 difference between the existing $6,100 first trust and the proceeds of a new $9,500 first trust and (b) $1,500 additional cash provided by the purchaser; and (3) a...
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