Coldicott v. W. C. & A. N. Miller Dev. Co.

• Citation: 47 A.2d 518
• Decision Date: 28 May 1946
• Docket Number: No. 375.,375.
• Court: D.C. Court of Appeals
• Parties: COLDICOTT v. W. C. & A. N. MILLER DEVELOPMENT CO.

47 A.2d 518

COLDICOTT

v.W. C. & A. N. MILLER DEVELOPMENT CO.

No. 375.

Municipal Court of Appeals for the District of Columbia.

May 28, 1946.

Appeal from the Municipal Court for the District of Columbia, Civil Division.

Action by Vivian V. Coldicott against W. C. & A. N. Miller Development Company to recover an amount retained by defendant, as a real estate broker, as commission for sale of plaintiff's property. Judgment for defendant, and plaintiff appeals.

Reversed.

Joseph T. Sherier, of Washington, D. C. (William H. MacDonald, of Washington, D. C., on the brief), for appellant.

Elmer E. Cummins, of Washington D. C., for appellee.

Before CAYTON, Chief Judge, and HOOD and CLAGETT, Associate Judges.

CAYTON, Chief Judge.

Defendant, a real estate broker, was sued for $2,500 which it had retained out of funds in its possession under a claim that such sum was due for a commission for the sale of plaintiff's property. The trial court found for defendant and plaintiff appeals.

Plaintiff was the owner of property for which she authorized defendant to secure a tenant. Defendant produced as a prospect the Belgian Economic Mission. After some negotiations, plaintiff entered into a lease with said Mission, which lease was for three years at $750 per month and gave the lessee an option to purchase the property ‘at a total price of $50,000’ within ninety days from the beginning of the lease. It provided that $4,500 should be payable at the time lessee took possession, to cover the last six months' rent. The option was exercised within the prescribed period and the sale consummated. The broker paid over to plaintiff $2,000 of the $4,500 in its possession but refused to surrender the remaining $2,500 which it claimed as its commission for negotiating the sale. This suit resulted.

In a written memorandum the trial judge made the following findings of fact: ‘(1) The defendant's agent was employed by the plaintiff to find a purchaser for the plaintiff's property. (2) The defendant's agent in fact procured a purchaser, to wit the Belgian Economic Mission. (3) The Belgian Economic Mission, after considerable negotiations, later purchased the property for which the defendant was the procuring cause. (4) At the final consummation of the sale of the property, the written lease with a 90-day option to purchase was silent as to the defendant's commission.’ Based upon said findings he also made the following conclusion of law:

‘The defendant, having been the procuring cause for the sale of the property and no provision having been made for his commission, the defendant, on the authority of Campbell vs. Rawlings, 52 Appeals 37, is entitled to retain the established real estate broker's commission of 5 per cent, amounting to $2,500.’

We think the conclusion and decision of the trial court are not supported by the evidence and that certain uncontradicted testimony in the case required a finding for plaintiff. We refer specifically to the testimony concerning a certain listing card signed by the owner. In this jurisdiction such a card is the usual method by which a broker is employed. Under our law ¹ no broker may offer property for sale or rent without the written consent of the owner or his authorized agent. Thus the listing card usually constitutes the agreement between owner and broker; and unless it is superseded by some later writing, or otherwise modified by the parties, it evidences the understanding between them.

In this case the testimony for plaintiff was that from the outset of the negotiations plaintiff and her husband had insisted that the selling price must be $50,000 ‘net to us,’ and had in fact refused to sign the first draft of a lease tendered by the broker because it contained a provision for a ‘total price’ of $50,000. Testimony for plaintiff was that though she did finally sign a lease containing such an option clause she did so only after repeated assurances on the part of the broker's representative, a Mrs. Rice, that the price would be $50,000 net to plaintiff, and that she, Mrs. Rice, would bring in the listing card (which had been filled out by the broker some time earlier, but not signed by the owner) and that Mrs. Rice assured them the listing card would recite a price of $50,000 net. This testimony as to the price being net was repeated by plaintiff and her husband at least a dozen times. Plaintiff's position was emphasized by testimony that when Mrs. Rice brought in the listing card and it showed an option to purchase at $50,000 with no recital that such price was to be net, plaintiff insisted, ‘This isn't right. This isn't our agreement,’ and demanded that Mrs. Rice ‘finish this out like it should be: $50,000 net to Vivian V. Coldicott in the event of a sale’; that Mrs. Rice ‘took her fountain pen and she wrote the fact $50,000 was $50,000 net to Vivian V. Coldicott and changed her date to correspond with our lease, and I signed it, and she got on her merry way.’

[3] Mrs. Rice did not agree exactly with all that plaintiff said, but she did...