Coleman's Ex'r v. Meade

• Decision Date: 11 October 1877
• Citation: 76 Ky. 358
• Parties: Coleman's Ex'r v. Meade, & c.
• Court: Kentucky Court of Appeals

76 Ky. 358

Coleman's Ex'r v. Meade, & c.

Court of Appeals of Kentucky.

October 11, 1877

APPEAL FROM JEFFERSON COMMON PLEAS COURT.

I. & J CALDWELL AND HARRISON & MCGRAIN FOR APPELLANT.

First. Before a real-estate broker can recover of his employer a commission he must show that he has earned it by furnishing a " purchaser" --a party ready willing, and able to comply with his contract.

Second. When he tenders and claims to have procured a party as purchaser, and the contract is not consummated, because of the action or insolvency of the proposed purchaser, the broker is not entitled to and can not recover commission; he does not earn his commission until the trade is consummated. (Love v. Miller, & c., Central Law Journal, Feb. 16, 1877, p. 152; Kimberly v. Henderson, 29 Mo. 512; Mooney v. Elder, 56 N.Y. 238; McGavock v. Woodlief, 20 How. 221; Koch v. Emmerling, 22 How. 72; 7 Bing. 99; Loud v. Hall, 106 Mass. 407; Phelan v. Gardner, 43 Cal. 311.)

ALFRED T. POPE FOR APPELLEES.

First. The brokers in this case started the negotiation and closed the bargain on behalf of their employer, by an enforceable contract in writing signed by the purchaser procured by them and accepted by him. (2 Robertson, N. Y. 523.)

If the deeds were not made in compliance with the contract negotiated by the brokers, or if their employer failed or refused to enforce a specific execution of the contract accepted by him, it was not their fault, and they were not thereby deprived of their right to their agreed commission.

" A written contract for the purchase of the estate, binding both vendor and purchaser, is a sale within the meaning of an agreement to pay a commission to a broker upon a sale of the estate." (Rice v. Mayo, 107 Mass. 550; Love v. Miller, Central Law Journal, February 16, 1877, p. 152.)

" A broker has earned his commission when he procures a party with whom his principal is satisfied, and who actually contracts for the property at a price satisfactory to the owner." (Wharton on Agency and Agents, section 328.)

See also in support of the above authorities, and as to the duties of real-estate brokers, Doty v. Miller, 43 Barb. 529; Glentworth v. Luther, 21 Barb. 145; Holby v. Gosling, 3 E. D. Smith, 262; Short v. Miller, 68 Ill. 293; Mooney v. Elder, 56 N.Y. 240; 25 Cal. 81; Batley v. Chapman, 41 Mo. 536; Keys v. Johnson, 68 Penn. St. 42; Clapp v. Hughes, 1 Philadelphia, 126; Cooke v. Fiske, 12 Gray, 491; Cook v. Welsh, 9 Allen, 350; 5 Bush, 587; 7 Bush, 253; 14 B. Mon. 154.

The authorities above cited show that the brokers had nothing whatever to do with the solvency or insolvency of the purchaser in this case, and that their right to the agreed commission was not thereby affected--the purchaser having been accepted and the good faith of the brokers not being questioned.

Second. Whether the purchaser was a good purchaser in this case is a question which was settled by the judgment of the court below. (Pittsburgh, Cin. & St. Louis R. Co. v. Woolley, 12 Bush, 451.)

Third. Death of defendant after submission but before judgment does not abate the action. (1 Strange, 426; 1 Smith's Leading Cases, p. 596; Hall v. Clifton, 2 McCord (S. C.), 387; Campbell v. Mesier, 4 Johnson's Ch. 341; 4 Barbour, N. Y. 524; 12 Wendell, 245; 18 Wendell, 543; 4 Cowen, 423; 2 Tidd's Pr.)

OPINION

COFER JUDGE:

John Coleman being the owner of valuable real estate situated in the city of Louisville, which he desired to sell, entered into an agreement with Gray & Meade, real-estate brokers doing business in that city, to procure a purchaser of the property, for which he agreed to pay them $1,000.

They entered into negotiations with W. A. Meriwether for a sale of the property to him, but, being unable to bring the parties to an agreement, the brokers arranged for a personal interview between them, which was had, but did not result in an agreement.

Coleman then had prepared a written proposition containing the terms upon which he would sell, and caused it to be delivered to the brokers, who procured Meriwether to accept it in writing, thus completing what is conceded to have been a valid executory contract for the sale of the property.

The proposition thus accepted was returned to Coleman, for the purpose of having a conveyance prepared, and Meriwether directed his attorney to examine the title. The attorney reported some defects in the title, and they were cured by procuring releases from those as to whom the defects existed.

The property was surveyed, and found to be a trifle less in quantity than was represented in the written proposal, which, by acceptance, had become the memorial of the contract. Coleman offered to make proper deduction for the deficit, but Meriwether declined to complete the purchase, and Coleman declined to take steps to compel specific performance.

The brokers then brought this action to recover the stipulated commission; and judgment having been rendered in their favor, this appeal is prosecuted to reverse that judgment.

The law and facts were submitted to the court without the intervention of a jury, and every fact the evidence conduced to prove and which goes to support the judgment must be assumed to have been found by the court in favor of the brokers, and every fact as to which the evidence was conflicting, and which would render the judgment erroneous if found in favor of Coleman, must be assumed to have been found against him.

The principal points in the defense were--

1. That Meriwether, having refused to complete the purchase, never became a purchaser within the meaning of the contract between the parties.

2. That the brokers were not entitled to their commission even if Meriwether had been willing to perform the contract, because he was insolvent and unable to perform it.

Meriwether was bound by the executory contract, and Coleman might have enforced it if he had desired to do so. All the brokers had to do was to furnish an eligible purchaser, that is, a person ready and willing to enter into a contract to buy the property. It was for the principal then to decide whether the...