Appeal
from Circuit Court, St. Mary's County; B. Harris Camalier
and Fillmore Beall, Judges.
THOMAS
J.
This
suit was brought by the appellee to recover commissions for
services alleged to have been rendered the appellant in
procuring a purchaser of certain property of the appellant
situated in St. Mary's county, Md.
The
appellant was the owner of three farms in St. Mary's
county, and on the 14th of June, 1909, signed three contracts
by which he authorized the appellee to sell the farms, and
agreed to pay him "a commission of 5 per centum out of
the first payment on the gross amount of the sale," with
the express understanding that the appellant was to
"incur no expense in the transaction" unless the
sale was made. Three contracts were signed because there were
three farms, and there is some confusion in these contracts,
as they are printed in the record, in regard to the price at
which the property was to be sold, but that confusion seems
to be accounted for by the fact that, while the clear
understanding was that the appellant was to receive $20,000
for the three properties, and that they were to be sold for
that sum, plus the commissions of the appellee, separate
contracts, on printed forms furnished by the appellee, were
desired in order to secure a description of each farm. It
also appears from the contracts that the terms of sale were
to be all cash, or one-half cash and the balance to be
secured by a mortgage on the properties, although there is
also some apparent confusion in regard to that growing out of
the fact that there were three contracts, and that the entire
contracts are not set out in the record.
The
plaintiff testified that in June, 1913, the defendant
telephoned him that he wanted $25,000 for the three farms,
and that he would pay the commission of 5 per cent. on that
sum if the sale was made for that price, and that he (the
plaintiff) noted the change of price on the contracts, and
thereafter advertised the property for sale for $25,000, and
then said:
"Finally, on April 23, 1914, I sold the three farms to
Mr. W. Bernard Duke, of Baltimore city, for $25,000, one-half
to be paid in cash as soon as the title could be searched and
papers prepared, and the balance to be secured by a mortgage
upon the property, to be paid in five years. At the time of
making the sale to Mr. Duke in Baltimore city Mr. Duke was
present, with his attorney, Mr. E. McClure Rouzer; and he
(Mr. Duke) directed his said attorney to prepare the contract
of sale in his (Mr. Rouzer's) name as attorney, and to
sign the same as attorney. After the contract of sale had
been prepared and signed as directed by Mr. Duke, he gave it
to me, with a certified check for $500, to take to the
defendant for his signature to the contract, and to deliver
the check to the defendant."
The
contract referred to by the witness is as follows:
"This agreement made this 23d day of April, 1914, by and
between W. S. Coopage, of Drayden, St. Mary's county,
hereinafter called the vendor, and E. McClure Rouzer,
attorney, of Baltimore, Maryland, hereinafter called the
vendee, witnesseth:
That the said vendor does hereby bargain and sell unto the
said vendee, and the said vendee does hereby purchase from
the said vendor, the following property situate and lying in
St. Mary's county, Maryland: Property known as the
Carthagina farm, containing two hundred acres (200) more or
less, property known as Cooper's Creek farm, containing
three hundred (300) acres more or less, and property known as
St. George's Point farm, containing two hundred and
eighty-seven (287) acres, more or less --together with the
improvements thereon and rights appurtenant thereto, at and
for the sum of twenty-five thousand dollars ($25,000), of
which five hundred dollars ($500) have been paid prior to the
signing hereof. The balance of said purchase money is to be
paid as follows: Twelve thousand dollars ($12,000) on or
before the expiration of thirty (30) days from the date
hereof, at which time a deed for the properties shall be
executed at the vendee's expense by the vendor, which
shall convey the property by a good and merchantable title to
the vendee. At the time of the execution and delivery of the
deed aforesaid the vendee shall give, and the vendor hereby
agrees to accept, a mortgage for the balance of said purchase
money, to wit, twelve thousand and five hundred dollars
($12,500) payable five years (5) after date, with interest at
six per cent. (6%), the said vendee to have the right to
reduce or pay off said mortgage at any time at his option.
Taxes, insurance, and other charges to be paid or allowed for
by the vendor to the date of transfer.
Executed in duplicate.
As witness our hands and seals the day and year first above
written.
[Signed] .............. [Seal.]
E. McClure Rouzer, Atty. [Seal.]
J. C. Howard."
The
plaintiff further testified:
"I carried this contract of sale *** with the certified
check for $500 with me to the defendant's house, on one
of his farms in St. Mary's county, where he then was, on
the Thursday or Friday following, and handed this contract to
the defendant for his signature, exhibiting and tendering to
him the check for $500. I left him reading the contract of
sale and went into the yard; and when I returned he expressed
himself delighted with the sale, and said everything was all
right. He then went to his safe, or some place, to look for
his deeds, as he said. After some search he said he could not
find them, and that he would not sign the contract
that day, as he wished to find his deeds first and to
notify his children, or to talk to his children about it,
but that he would be in Leonardtown the following Tuesday,
when he would sign the contract and settle up. *** He was
very much pleased that the sale had been finally made. The
defendant came to Leonardtown the following Tuesday and
said to me he would like to reserve the Carthagina farm,
and asked me if I could get it off for him. As Mr. Duke,
the purchaser, was a friend of mine, I told him I thought I
could do this for him. I telephoned to Baltimore, and they
finally said they would let off the Carthagina farm, as
suggested, for $6,000, making the price for the other two
farms $19,000. When the defendant next came to Leonardtown,
I told him they would let him off with the Carthagina farm
for $6,000, and he then asked if I could not get him off
with the whole deal, as his children were crazy for him to
keep the farms, and that he would pay the full commission
of $1,250. I told him if he would do this I might be able
to get him off. Afterwards he offered to pay me $1,000,
saying this would be proper commission after taking off
Carthagina farm; and after that he wanted to make it $950.
I then refused his offer, and he has never paid me a cent.
This was the last conversation I had with him. On his first
or second visit to Leonardtown after I had presented the
contract of sale to him for his signature, according to my
recollection, I told him Mr. Rouzer was acting as attorney
for Mr. W. Bernard Duke in purchasing the farm, and that
Mr. Duke was the purchaser. After my last conversation with
the defendant in Leonardtown I received a letter from Mr.
Rouzer, Mr. Duke's attorney, dated May 19, 1914,
complaining of the delay in closing the deal; and I sent
the defendant this letter, with a letter from me dated May
20, 1914, but he never returned the Rouser letter to me, as
I requested. After that, early in June, 1914, I received a
letter from the defendant saying that his farms were not
for sale; and I promptly turned this letter over to my
attorneys for their action."
The
letters referred to by the witness as having been sent to the
defendant made no disclosure of the fact that Mr. Duke was
the purchaser. On cross-examination the plaintiff testified:
"That he told the defendant who the purchaser was after
he had made one or two visits to Leonardtown; that this was
his recollection; that the defendant may have asked the name
of the purchaser at the time the witness presented the
contract of sale to him; that he does not recollect telling
the defendant at the time who the purchaser was; that he did
not think this was very important so long as the defendant
was satisfied with the sale and was getting his price for the
farms; that there might have been something said about a
Connecticut man; that on previous occasions they had talked
about people from Connecticut, from Cleveland, and from
elsewhere; that he did not know under what impression he left
the defendant as to who the real purchaser was at the time he
presented the contract of sale; that he did not know whether
the defendant thought it was the Connecticut or Cleveland
parties; *** that he did not know if Mr. Duke is now ready to
take the property; that he never carried Mr. Duke to see the
defendant, and never told the defendant to communicate with
Mr. Duke, nor did he tell Mr. Duke to communicate with the
defendant; that he did not remember how many times the
defendant asked him who was the purchaser; that he did not
think it important the defendant should know who the
purchaser was so long as he was perfectly satisfied with the
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