Cooper v. Upton

Decision Date27 November 1909
Citation60 W. Va. 648,65 W. Va. 401,64 S.E. 523
PartiesCOOPER. v. UPTON.
CourtWest Virginia Supreme Court

On Rehearing, March 30, 1909.

Further Rehearing Denied May 12, 1909.

1. Brokers (§ 49*)—Right to Commissions-Contract.

Where a contract between the owner of land and a real estate agent provides, in substance, that, if a party or parties presented by the agent want to buy the land at a price satisfactory to the owner, the agent shall be paid 5 per centum commission, the agent must substantially comply with the contract by presenting or producing a party or parties able, willing, and ready to buy the land at a price satisfactory to the owner, before the agent will be entitled to commissions.

[Ed. Note.—For other cases, see Brokers, Cent. Dig. §§ 70-72; Dec. Dig. § 49.*]

2. Brokers (§ 56*)—Commissions—Negotiations Direct with Principal.

If the negotiation resulting in a sale of the land was not carried on by the agent but by the owner, the agent must show that he was the efficient cause of the negotiation resulting in the sale, before he will be entitled to commissions.

[Ed. Note.—For other cases, see Brokers, Cent. Dig. §§ 85-89; Dec. Dig. § 56.*]

3. Brokers (§ 862-*)—Commissions—Evidence.

When the owner voluntarily consummates a sale and conveys the land, this is conclusive evidence that the price is satisfactory, and that the purchaser is willing and ready to buy.

[Ed. Note.—For other cases,-see Brokers, Dec. Dig. § 86.*]

4. Evidence (§ 77*) —Presumptions —Failure to Call Witnesses.

There is no presumption against a defendant for failure to call witnesses, or any particular witness, when the plaintiff, carrying the burden of proof, has not made a prima facie case.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 97; Dec. Dig. § 77.*]

5. Evidence (§ 86*)—Presumptions—Failure to Call Witness.

Such presumption cannot be used to relieve the plaintiff from the burden of proving his case.

[Ed. Note.—For other cases, see Evidence, Dec. Dig. § 86.*]

6. Account Stated (§ 3*)—Previous Indebtedness.

There can be no account stated where there is no pre-existing debt or liability.

[Ed. Note.—For other cases, see Account Stated, Cent. Dig. § 13; Dec. Dig. § 3.*]

7. Account Stated (§ 7*)—Effect.

An account stated, in the absence of fraud, mistake, error, or omission, determines only the amount of the debt when a liability exists. Alone, it cannot create a liability where none previously existed.

[Ed. Note.—For other cases, see Account Stated, Cent. Dig. §§ 41-49; Dec. Dig. § 7.*]

8. Account Stated (§ 6*)—Implied Assent of Party to be Charged.

Where there is no pre-existing debt or liability, the rendering of an account, to one who keeps it without objection, does not make an account stated.

[Ed. Note.—For other cases, see Account Stated, Cent. Dig. §§ 30-40; Dec. Dig. § 6.*]

On Rehearing.

9. Rights of Brokers.

The syllabus in this case, reported in 60 W. Va. 648, reconsidered and approved.

Miller, P., dissenting.

(Syllabus by the Court.)

Appeal from Circuit Court of Upshur County.

Bill by John T. Cooper against E. M. Upton. Decree for plaintiff, and defendant appeals. Reversed, and bill dismissed.

Dent & Dent and Jake Fisher, for appellant.

Linn, Byrne & Cato, for appellee.

COX, J. This suit in equity, with attachment, was brought by John T. Cooper, of Parkersburg, W. Va., against E. M. Upton, of Rochester, N. Y., in the circuit court of Webster county, to recover 5 per cent. commissions claimed by Cooper upon the sale price of a certain tract of land known as the "Porter" or "Upton" lands, said to contain 10, 012 acres, lying in Webster, Randolph, and Pocahontas counties. The cause was removed to, and heard by, the circuit court of Upshur county, resulting in a decree in favor of Cooper for $7,718.25, and costs, with an order of sale of certain real estate levied on to satisfy the decree In favor of Cooper. From this decree, Upton appeals.

The record presents three questions, which will be considered in the following order:

(1) What was the contract, if any, between appellant and appellee in relation to commissions? The contract is disclosed by two letters between the parties—one by appellee to appellant dated November 22, 1900, and a reply thereto by appellant dated November 26, 1900. In the letter of appellee, after naming certain prospective purchasers of the land, he says: "These parties are presented, as are all others, on condition that you secure me in an absolute commission of (5 per cent.) five per cent. in ease of sale to or through any of the parties." In the reply of appellant he says: "I have yours of the 22d, and note what you say about the syndicate of eastern and English parties. I will not write these parties at all, but if they want the property at a satisfactory price, we will pay 5 per cent. commissions, although this is an exorbitant price." There was other correspondence between the parties, and their evidence was taken at length, but there is nothing substantially changing the contract as shown by these two letters. The contract in substance was that, if a party or parties presented by appellee wanted to buy the land at a price satisfactory to the owner, the appellee should be paid 5 per centum commissions. Under this contract, before the appellee would be entitled to commission he must substantially perform the contract by presenting or producing a purchaser able, willing, and ready to buy the land at. a price satisfactory to the owner. Nichols v. Whitacre (Mo. App.) 87 S. W. 594; Forrester v. Price, 6 Misc. Rep. 308, 20 N. Y. Supp. 799; 23 Am. & Eng. Enc. Law, 915, 916; 19 Cyc. 240-242; Greene v. Owings, 41 S. W. 264, 19 Ky. Law Rep. 580; Weibler v. Cook (Sup.) 78 N. Y. Supp. 1029; 5 Current Law, 449-451. If the final negotiation resulting in a sale was carried on by the owner and not by the agent, the latter must have been the efficient cause of the negotiation by the purchaser in order to entitle him to commissions. Halterman v. Leining (Sup.) 90 N. Y. Supp. 397.

(2) Did the appellee substantially comply with the contract and thereby become entitled to commissions? At the time of the contract, the records of the counties in which the land was situated showed that appellant was the owner of the land in his own name, and was taxed therewith, but in fact he seems to have held it for the Elk Land & Lumber Company, in which he and others were interested. The sale of the land, at the price upon which appellee claims commissions, was made on the 8th day of April, 1902, through J. K. Moore, of Washington City, to Arthur Lee, trustee for Henry G. Davis. An agreement or memorandum was on that day entered into by Moore, as agent for the appellant and the other owners of the land, with Lee, trustee, for the sale of the land, at $13 per acre, and $5,000 was then paid by check of Henry G. Davis. On the 16th of May, 1902, those interested in the land or in the Elk Land & Lumber Company, including appellant, entered into a written agreement reciting the facts in relation to the sale, and ratifying and confirming the sale. This sale was carried out in part by deed made the 9th of July, 1903, by appellant and wife, and Lee, trustee, and wife, to Henry G. Davis, whereby the facts in relation to the sale were recited, and 7, 528 acres of the land (being the part lying in Randolph and Pocahontas counties) were conveyed to Davis. The deed further provided that the title to the residue of the land (being the part lying in Webster county) should remain in appellant, subject to the contract of sale to Arthur Lee, trustee. It is argued that the said agreement of sale is void, and that its date cannot be taken as the date of the sale, because it was made without authority of the owner or owners of the land. The answer to this is that Moore professed to act for the owner or owners, and that the sale was afterwards ratified and confirmed by the owner or owners, and that conveyance of part of the land was made pursuant to the agreement of sale. Consequently, the 8th of April, 1902, must be taken as the date of the actual sale or contract of sale. Ruffner v. Hewitt, 7 W. Va. 585; Union Bank v. Beirne, 1 Grat. (Va.) 227; Devendorf v. Oil Co., 17 W. Va. 135. The question then is, did the appellee present or produce the purchaser at this sale? The fact that a sale was consummated, and a deed for the land made voluntarily, must be taken as conclusive evidence that the price was satisfactory, and that the purchaser was willing and ready to purchase. 5 Current Law, 450; Mar-cey v. Whallon, 115 111. App. 435; Marks v. Elliot (Sup.) 90 N. Y. Supp. 331; Norman v. Hopper (Wash.) 80 Pac. 551.

The theory of the appellee is that he was the efficient cause of the negotiation and purchase by Davis. He does not claim that he had any correspondence, negotiation, or connection previous to the sale with Davis or Lee directly. He does, however, claim that Henry G. Davis and S. B. Elkins were general business partners, and were partners, or jointly interested, in this purchase at the time it was. made, and that his efforts and correspondence with Elkins and with others caused the negotiation and purchase by Davis, and that the purchase by Davis was in fact for Davis and Elkins. That Elkins was interested in the land at a date subsequent to the sale cannot be disputed, but was he interested at the time of the purchase by Davis? This constitutes one of the principal controversies in the case, bearing upon which much of the evidence was introduced. It is not our purpose to detail at length the evidence, but we shall notice some of the salient circumstances and features of the evidence relied upon by the appellee to show that Elkins was interested at the time of the sale, and that the correspondence and efforts of appellee with Elkins caused the negotiation and purchase by Davis.

(a) Appellee insists that, by failing to deny, the appellant has admitted to be true the allegations of the bill that "at and for a long...

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