Connors v. Dagiel, 9877

• Decision Date: 10 July 1958
• Docket Number: No. 9877,9877
• Citation: 143 A.2d 297,88 R.I. 113
• Parties: Edward V. CONNORS v. Walter J. DAGIEL et ux. Ex.
• Court: Rhode Island Supreme Court

Page 297

143 A.2d 297

88 R.I. 113

Edward V. CONNORS v. Walter J. DAGIEL et ux.

Ex. No. 9877.

Supreme Court of Rhode Island.

July 10, 1958.

Goodman & Gorin, Pawtucket, Jordan Tanenbaum, Providence, for plaintiff.

Woolley, Blais & Quinn, John S. Lennon, Pawtucket, for defendants.

PAOLINO, Justice.

This is an action of assumpsit brought by a broker to recover a commission. The action was tried before a justice of the superior court sitting without a jury and resulted in a decision for the defendants. The case is before us on the plaintiff's single exception to such decision.

The instant action is based on a written brokerage agreement dated April 28, 1956 and signed by plaintiff and defendants. In the first paragraph thereof defendants appointed plaintiff to act as their 'Sole And Exclusive Agent' and also granted him the 'Exclusive Right To Sell' certain property on Benefit street in the city of Pawtucket owned by defendants for the sum of $11,800. They agreed therein to pay him a commission of 5 per cent of the full sale price of said property. This paragraph also provided among other things that plaintiff's authority to act as such agent 'shall be irrevocable and remain in effect for a period of three months from the date hereof and thereafter until terminated in writing' by defendants.

In the second paragraph defendants agreed that if the property was sold by them or by a person other than plaintiff to anyone prior to the termination of the agency, or if sold within six months thereof to a person making contact with defendants or whose attention was called to the property by plaintiff prior to such termination 'then in any such events my said Agent shall be entitled to receive the commission above stated.'

It appears from the record that plaintiff advertised the property, placed his sign on the premises and showed the property to several prospective purchasers; that in June 1956 Helen Pawluch, who ultimately purchased the property through another broker, called plaintiff as a result of having seen his advertisement of a two-family house; that she requested the address of the premises so that she and her husband might look at it; that she told plaintiff if they were interested in it they would call him; and that plaintiff called her a week or ten days later at which time plaintiff found out the Pawluches were not interested in buying the house.

The plaintiff testified that he is a member of the Pawtucket Multiple Listing Service of the Pawtucket Real Estate Exchange; that he left three multiple listing contracts all filled out with defendants; that after the contracts had been signed he kept one and gave two to the Multiple Listing Service secretary, who kept one for the Service and mailed the other to defendants; and that he received, at his home address, a letter dated August 18, 1956 in an envelope postmarked August 29, 1956 notifying him that the agency was terminated. The letter is addressed to 'Edward V. Connors, Pawtucket Real Estate Exchange, Old Colony Bank Building, Pawtucket, R. I.' The letter contained a postscript indicating that the original notice of termination, which as appears later herein was mailed to plaintiff at the office of the Pawtucket Multiple Listing Service, had been returned to defendants marked addressee 'Unknown.'

The defendant husband testified that he had received a letter dated May 2, 1956 from the Pawtucket Multiple Listing Service advising him that they had received the contract in question; that he mailed a letter dated August 18, 1956 addressed to 'Mr. Edward V. Connors, Pawtucket Real Estate Exchange, Old Colony Bank Building, Pawtucket, R. I.' terminating the agency; that the envelope in which the letter was mailed was postmarked August 20, 1956; that said letter was returned to defendants marked addressee 'Unknown'; and that a day or two later he mailed another letter addressed to plaintiff's home notifying him of the termination of the agency.

It appears from the evidence that on August 21, 1956 defendants appointed Edwin L. Price, another real estate broker, to sell their property; that on August 23 this broker accepted a deposit from the Pawluches and on August 24 a purchase and sale agreement was executed between defendants and the Pawluches for the sale of the property for $11,000; and that on August 31, 1956 it was conveyed to the Pawluches.

Mr. Pawluch testified that his wife had contacted Mr. Price in May 1956 about another house which Mr. Price had for sale but in which they were not interested; that at that time she told Mr. Price to contact her when he had a house located on Benefit street to sell; that Mr. Price contacted Mrs. Pawluch on August 23, 1956 with reference to the house owned by defendants; that they went with Mr. Price to look at the house; that they gave him a deposit on the same day; and that Mr. Connors' sign and Mr. Price's sign were on the house. Mr. Pawluch also testified that he lived a few blocks from the house in question; that he went by it every day and had seen plaintiff's sign on the house prior to August 23, 1956; and that the first time he had seen defendants was in the bank at the time of the closing of the transaction on August 31, 1956. The plaintiff admits that he never showed this property to the Pawluches and that he never mentioned their name to defendants. The defendants also testified they had never met the Pawluches until the day of the closing at the bank.

In all three counts of his declaration plaintiff alleges that he is entitled to a commission of 5 per cent of $11,800, the sale price specified in the written agreement. However, at the trial in the superior court he stated that he was claiming a commission of 5 per cent of $11,000, the amount for which the property was actually sold. On the other hand defendants claimed then, as they do now, that plaintiff was not entitled to any commission.

After observing that the contract was drawn by plaintiff, and after finding that plaintiff did not bring about the sale for the price named in the contract, the trial justice rendered a decision for defendants on the ground that the instant case was governed by Brown v. Adams, R.I., 69 A. 601. He concluded that on the facts before him and under the law set forth in the Brown case, plaintiff could not recover.

The plaintiff contends that he is entitled to a commission of 5 per cent of the amount for which the property was sold. He argues that this case is not governed by the law set forth in Brown v. Adams, supra, and that the cases are factually distinguishable in that, among other things, no exclusive agency or exclusive right to sell was involved in the Brown case. He also contends that where an agency is to terminate by notice, the notice must...