Campbell v. Howard Nat. Bank & Trust Co., 392

• Decision Date: 02 February 1954
• Docket Number: No. 392,392
• Citation: 118 Vt. 182,103 A.2d 96
• Court: Vermont Supreme Court
• Parties: CAMPBELL v. HOWARD NAT. BANK & TRUST CO. et al.

Page 96

103 A.2d 96

118 Vt. 182

CAMPBELL v. HOWARD NAT. BANK & TRUST CO. et al.

No. 392.

Supreme Court of Vermont.

Feb. 2, 1954.

McNamara & Larrow, Russell F. Niquette, Burlington, for plaintiff.

A. Pearley Feen, Joseph C. McNeil and Paul D. Sheehey, Burlington, for defendants.

Before SHERBURNE, C. J., JEFFORDS, ADAMS, and CHASE, JJ., and SHANGRAW, Superior J.

ADAMS, Justice.

This is an action of contract to recover a commission for the sale of real estate. Trial was by jury with resulting verdict and judgment for the plaintiff. The case is here on exceptions of the defendants.

The only exceptions briefed are to the denial of the defendants' motions for a directed verdict, to set aside the verdict and for judgment notwithstanding the verdict. All other exceptions are therefore waived. Little v. Loud, 112 Vt. 299, 301, 23 A.2d 628; Town of Randolph v. Ketchum, 117 Vt. 468, 470, 94 A.2d 410.

The declaration is in two counts. The first count seeks to recover a commission of $20,000 for producing a person, Mrs. Peter Handy, ready, willing and able to purchase certain real estate with buildings thereon known as the 'Strong Building Property' so-called in the city of Burlington and to whom the defendants did not sell. The second count seeks to recover a commission of $20,000 on the sale of the same real estate by the defendants to one Cody, a person procured by the plaintiff.

In passing upon a motion for a directed verdict the evidence must be taken in the light most favorable to the plaintiff and the ruling of the trial court sustained if the evidence so viewed fairly and reasonably tends to support the verdict. Tinney v. Crosby, 112 Vt. 95, 101, 22 A.2d 145; State v. Wilson, 113 Vt. 524, 526, 37 A.2d 400; Cobb v. Olsen, 115 Vt. 266, 268, 56 A.2d 471. The effect of modifying evidence is to be excluded. Contradictions and contradictory inferences are for the jury to resolve. The tendency of the evidence and not its weight is to be considered. Hill v. Stringer, 116 Vt. 296, 299, 75 A.2d 657; Frenier v. Brown, 116 Vt. 538, 540, 80 A.2d 524. If there is any substantial evidence fairly and reasonably tending to support the plaintiff's claim, the question is for the jury. Stevens v. Wright, 107 Vt. 337, 340, 179 A. 213; Domina v. Pratt, 111 Vt. 166, 171, 13 A.2d 198; Silveira v. Croft, 116 Vt. 420, 422, 77 A.2d 911.

The evidence pertaining to count one, tended to show the following facts: The plaintiff has been a licensed real estate broker for about seven years. About five years ago the defendant, Howard National Bank & Trust Co., as coadministrator listed with the plaintiff for sale what is known as the Strong Theatre Building. The listing included the building and land which the parties refer to as parcel number one on a plan dated June 23, 1946, plus a right of way. The plaintiff knew in a general way how the title to the property stood and the property generally. He knew the estates of which the bank was coadministrator owned other land in the same area. This other land is referred to by the parties as parcels 2, 3 and 4 on the same plan. The price given the plaintiff was $250,000 net to the estates. His commission was to be 10%. He therefore quoted to prospective purchasers a price of $275,000. The plaintiff was informed that a purchaser would be required to give a lease for the term of ten years at $7,500 per year to the Strong Hardware Co. of that part of the premises occupied by it.

In April 1951, Mr. and Mrs. Ernest Handy of Burlington, through the plaintiff, became interested in purchasing the property. The plaintiff tried to get financing through various banks and insurance companies for them but was unsuccessful. Mrs. Ernest Handy is the daughter of Mrs. Peter Handy. The conferences or many of them between the plaintiff and Mr. & Mrs. Ernest Handy took place in their home on King Street. Mrs. Peter Handy lived in the same house. A Mr. Ordway was trust officer of the bank and was handling the sale for it. The plaintiff had taken Mr. & Mrs. Ernest Handy to the bank and they had discussed with Ordway several times their prospective purchase of the property. The plaintiff was called to the bank several times and discussed with Ordway the Handys as purchasers. He gave Ordway at his request a letter stating that the plaintiff's commission on a sale of $250,000 would be 10%, that he had priced the property at $275,000 and that he claimed no exclusive in the sale other than to the party 'we held conferences with, namely, Mr. & Mrs. Ernest Handy or any one connected with them.' After that the plaintiff was called to the bank and informed that the price was reduced $50,000 to $200,000 net. He informed Mr. & Mrs. Ernest Handy about this. The bank informed the plaintiff that if the Handys could pay $100,000 down, the bank would be interested in a mortgage for $120,000.

Mrs. Peter Handy learned from the Ernest Handys of their interest in the property, the reduced price and their inability to finance the purchase. She concluded it was a good buy and contacted her lawyer, Mr. Fayette, giving him authority to purchase it for her. She had extensive real estate holdings in Burlington with which the bank was familiar. She told Fayette to use this property to raise the money and gave him a list of it. Fayette had been her attorney for a long time and knew about her property and its title. That same day, Monday, August 13, Fayette talked with Ordway and informed him that he had a client as a customer for the property, Mrs. Peter Handy, who would not require the payment of a commission. Ordway informed Fayette that Mr. Campbell, a real estate man, had been representing Mr. & Mrs. Ernest Handy as prospective purchasers and Fayette had better get in touch with him because of the relationship.

Fayette tried to contact the plaintiff but was unsuccessful. That same day Ordway told the plaintiff that Fayette was looking for him as he had a client, Mrs. Peter Handy, for the Strong Theatre. The plaintiff then informed Ordway that she was his party as he understood she was to make the down payment for Mr. & Mrs. Ernest Handy. The plaintiff then contacted Fayette at the latter's office, where they had a conference. Fayette then contacted Mrs. Peter Handy and after that advised Ordway that, after a conference with the plaintiff and with Mrs. Peter Handy, Campbell, as a real estate broker, could not be circumvented, that the relationship was such that he would be entitled to a commission whether the sale was made to Mrs. Peter Handy or to Mr. & Mrs. Ernest Handy. The plaintiff discussed with Fayette the terms of the sale and about cash of $100,000 and the bank taking a mortgage for $120,000. That same day, August 13, or the next day, the plaintiff took Mrs. Peter Handy to look over the property. Mrs. Ernest Handy and another daughter accompanied them. Mr. Quinn, the coadministrator, was there. The lines were shown by him as including only parcel number 1 and the right of way as what they were interested in selling.

Fayette talked with Mr. Lockwood, the president of the bank, about a loan to Mrs. Peter Handy to be secured by a mortgage on the properties that she could mortgage as security for the loan. He also talked with Ordway about the terms of the proposed sale to Mrs. Peter Handy. Ordway informed him that a lease would be required...