Carpenter v. Phillips

• Decision Date: 26 March 1923
• Docket Number: 249
• Citation: Carpenter v. Phillips, 249 S.W. 357, 157 Ark. 609 (Ark. 1923)
• Parties: CARPENTER v. PHILLIPS
• Court: Arkansas Supreme Court

249 S.W. 357

157 Ark. 609

CARPENTER v. PHILLIPS

No. 249

Supreme Court of Arkansas

March 26, 1923

Appeal from Fulton Circuit Court; J. B. Baker, Judge; affirmed.

Judgment affirmed.

C E. Elmore and Oscar E. Ellis, for appellant.

No evidence of any contract with appellees to sell appellant's farm, and there must be a contract to entitle broker to commission. Horton & Co. v Beall, 116 Ark. 273; Murry v Miller, 112 Ark. 227; Scott v. Cleveland, 122 Ark. 229; Brannen v. Poole, 142 Ark. 48; Gammell v. Cox, 143 Ark. 72. Court erred in giving instructions 1a, 2a, 3a, 4a and 5a, and also 3 and 5. Also erred in allowing the introduction of letters and telegrams from appellees to Thompson and from him to them, same being incompetent and self-serving declarations.

J. C. Ashley and H. A. Northcutt, for appellees.

Cases cited by appellant reviewed. Broker employed to sell is entitled to commission when. 53 Ark. 49; 76 Ark. 375. The jury was properly instructed and the evidence is sufficient to sustain the verdict. 83 Ark. 202; 90 Ark. 301; 89 Ark. 185; 127 Ark. 429. Appellees were the procuring cause of the sale. 132 Ark. 378; 102 Ark. 200; 137 Ark. 23.

OPINION

WOOD, J.

This action was instituted by the appellees against the appellant to recover the sum of $ 400 which the appellees alleged that appellant owed them for services rendered appellant in the sale of a certain farm in Fulton County, Arkansas. The appellees alleged that they were partners in the real estate business, and that they were employed by the appellant to sell his farm at the price of $ 8,000; that they procured a purchaser for the farm, who purchased the same at that price, and that the appellant agreed to pay them for their services as commission five per cent. of the purchase price, which lie had refused to do. The appellant denied all the material allegations of the complaint.

The testimony of Richard Stockard, one of the appellees, was to the effect that the appellees were partners in the real estate business. They were advertising their business in the Daily Oklahoman, a newspaper in Oklahoma. One Mr. Thompson saw their ad. and answered it, telling the appellees that he wished to purchase an improved farm in the Ozarks. Appellees wrote him in regard to a farm they had on Big Creek. Thompson came, and appellees took him to look at certain farms, but Thompson was not pleased with these, and he and the appellees started back to Ashflat, where the appellees resided and had their business office. On the way they stopped at the appellant's. Appellant said to one of the appellees, "Who have you got with you?" and the reply was "A fellow by the name of Thompson from Castle, Oklahoma--a land buyer." Appellant said, "Sell him my place." One of the appellees told Thompson that the appellant wanted to sell his place, and told Thompson that the appellant had an ideal farm. One of the appellees took Thompson in and introduced him to appellant. They all went down to the barn, and appellant showed Thompson a crib full of corn, and Thompson said, "This is the kind of a place I want." They went back and looked over the house, and Thompson stated that he was going home and tell his wife about the place, and was pretty sure she would take it, and that he would wire the appellees whether to hold the place for him or not. Thompson at that time said to appellant, "I want you to understand that I am dealing through these boys" (referring to appellees). In about three or four days appellees got a telegram from Thompson which read, "Hold Mac Carpenter farm. Letter of instructions will follow." In about a week Thompson came back. Appellees had received a telegram to meet him and his wife. One of the appellees met him and his wife on the 9th of December and took them out to Ashflat, and on out to appellant's the next morning, to look over appellant's farm. Thompson said, while they were examining the farm, "This is the farm I want." After examining the farm they went back to appellant's house, and there appellant said to the appellees, "You can go on home now, and we will come down Monday or Tuesday, and I will settle up with you," and of course appellees supposed that he would come and pay them their commission.

Thompson had told the appellees that he was going to take the farm. Appellant came in in about a week and said, "I have got the deed made, and the notes drawn up." Thereupon one of the appellees said to him, "We are really entitled to ten per cent. on this trade, but we are going to settle with you for $ 400." Appellant replied, "Well, that is what Boss Woods charged to sell this farm two years ago, but it seems like this deal was made mighty quick." In a few days he came back again and said to appellees, "I have been studying this over, and all I am willing to pay you is $ 5 a day and car fare and expenses." On cross-examination the witness was asked if appellant agreed to pay appellees five per cent. commission for selling the place, and witness answered, "He said, 'Sell him my place. I would just as soon pay you boys a commission as anybody'." Appellant knew that appellees were in the real estate business. Appellant's place had not been listed with the appellees for sale, and they had no other contract for selling same than that made that night.

Phillips, the other appellee, in his testimony substantially corroborated the testimony of Stockard, and further testified that, after the negotiations were on and the place was sold, and while they were trying to settle with the appellant as to their commission, he remarked that they had never sold the place, and said, "Thompson would not give $ 8,000 for the place," and further stated in the same conversation, "If you can sell it for $ 8,000 I will give you the $ 400 right now." Appellees told him that they considered that they had already sold it for that. It was the first time they were out at appellant's with Thompson that appellant made the contract. He told appellees then, in the presence of Thompson, that he would just as soon pay them as anybody. But the testimony of the appellees further tends to show that, between the time they were first out at the appellant's with Thompson, appellant had made inquiries of appellees as to whether they had heard anything from Thompson, and when appellees received the telegram from Thompson they called up the appellant and told him about it. They talked to appellant over the 'phone in regard to the deal. The testimony of appellees was also to the effect that five per cent. was a reasonable charge for their services; that it was the usual and customary commission where they sold land as they did this.

Mr. Thompson was introduced as a witness by the appellant, and he testified, corroborating substantially the testimony of the appellees as to the circumstances under which he became acquainted with appellant. He stated that the appellees said that they did not know that Carpenter wanted to sell; that if they had known, they would like to have sold it for him. They stated they didn't have any contract on the farm. Witness bought the farm from Carpenter because it was the ideal farm he had been looking for. It was something over forty days after witness first met Carpenter before he purchased the farm. Witness and his wife were staying at Carpenter's, and while they were there Carpenter showed them his farm and other farms. Witness didn't purchase the farm because of any recommendation or solicitation of the appellees or either of them. He denied that he stated, in the presence of Carpenter and the appellees, that night when he first met Carpenter, that he "was dealing through these boys," meaning Dee Phillips and Richard Stockard. Witness made no such statement. Carpenter priced the farm to witness and stated the condition on which it could be bought. Neither of the appellees ever told witness the terms of the purchase or the price, or anything about it, and neither of them ever represented to witness that they had it for sale. Witness, on cross-examination, stated the circumstances of the meeting with Carpenter about as it had been detailed by the appellees, and stated that he was introduced by Stockard to Carpenter as a prospective buyer of a farm. He had decided that night that he would take the farm, but he was buying it for his wife, and she had to see it. Before he came back he sent the telegram to the appellees in which he told them to hold the Mac Carpenter place, and wrote them a letter stating that he would be back some time the next week with his wife, and to be sure to see that "old Mac Carpenter holds the farm," and wired the appellees to meet him. The appellees did meet witness at the train and went with him to the appellant's. The deal for the farm was closed between the witness and Carpenter some weeks after that. The consideration of the purchase to Carpenter was $ 8,000.

The appellant testified, and, without setting out his testimony in detail, it suffices to say it was substantially the same as to the meeting of Thompson as detailed by the appellees and Thompson, that he was introduced to Thompson by Stockard but closed the deal with Thompson himself. Appellant stated that when the appellees came back the second time with Thompson he decided that they were trying to work into the deal. So he took Stockard out and told him that he would not pay any commission, and wanted to tell him so before he went any further. He said...