Covino v. Pfeffer
| Decision Date | 29 December 1970 |
| Citation | 160 Conn. 212,276 A.2d 895 |
| Parties | Albert N. COVINO v. Bruce B. PFFEFFER et al. |
| Court | Connecticut Supreme Court |
William L. Tobin, Waterbury, for appellants (defendants).
Thomas L. Brayton, Waterbury, with whom, on the brief, was Walter R. Griffin, Waterbury, for the appellee (plaintiff).
Before ALCORN, C.J., and HOUSE, THIM, RYAN and SHAPIRO, JJ., concurring.
The plaintiff, a real estate broker, sued to recover a commission upon the sale of property subject to a written exclusive sale agreement. The defendants, former owners of the property subject to this agreement, demurred to the complaint. The trial court overruled the demurrer. Thereupon the defendants filed their answer. Upon trial, the issues were found for the plaintiff and judgment was rendered in his favor. The defendants have appealed and assigned a number of errors. We take up first the assignment of error relating to the overruling of the demurrer.
In passing on the demurrer, the court will not consider other grounds than those specified. Cyr v. Brookfield, 153 Conn. 261, 263, 216 A.2d 198; Turrill v. Erskine, 134 Conn. 16, 19, 54 A.2d 494. The defendants demurred to the complaint on the grounds that it did not state a cause of action since (1) it did not allege that the plaintiff was the procuring cause of the sale; (2) that there was a specifically enforceable agreement to sell the subject property during the term of the exclusive listing period; (3) that there was any collusion between the defendants and the purchaser or any other fraud practiced against the plaintiff; (4) that the defendants rendered themselves unable to convey or that they refused to convey the subject premises to any buyer procured by the plaintiff who was ready, willing and able to purchase the premises, or that the defendants in any other way frustrated the plaintiff in earning a commission on the sale of the subject property during the term of his exclusive sale agreement.
'A demurrer tests whether the allegations of a complaint state a good cause of action.' Senior v. Hope, 156 Conn. 92, 96, 239 A.2d 486, 488. A demurrer admits all facts well-pleaded. Cyr v. Brookfield, supra; Weaver v. Ives, 152 Conn. 586, 589, 210 A.2d 661. If any facts provable under the allegations of a complaint would support a cause of action, a demurrer must fail. Senior v. Hope, supra, 156 Conn. 98, 239 A.2d 486; Cyr v. Brookfield, supra; Benson v. Housing Authority, 145 Conn. 196, 199, 140 A.2d 320.
Thus testing the complaint, the following facts are taken as admitted. On April 11, 1968, the plaintiff and the defendants entered into a written exclusive sale agreement by the terms of which the plaintiff had the exclusive right to sell the defendants' property for a period of ninety days. The plaintiff was entitled to a commission of 6 percent of the sale price if he found a customer ready, willing and able to purchase the property at the price of $18,000 or at a figure acceptable to the defendants. During the ninety-day period, the defendants agreed to sell the property to a customer procured by one of the defendants or by a person other than the plaintiff. During the ninety-day period, the plaintiff made reasonable efforts to sell the property. On August 8, 1968, the sale of the defendants' property was consummated by a conveyance for the sum of $17,500. The question for determination, therefore, is whether a complaint which alleges these facts fails because of the grounds specified by the defendants in their demurrer.
The owner in a contract giving a broker the exclusive sale of property agrees that he will not sell his property during the life of the contract to any purchaser not procured by the broker. Harris v. McPherson,97 Conn. 164, 167, 115 A. 723. The owner, in such a contract, makes the broker the only medium through which a purchaser can be procured during its life. Harris v. McPherson, supra, 167, 168, 115 A. 723. The owner agrees not only to exclude another agent, but also himself from procuring a purchaser. Harris v. McPherson, supra, 168, 115 A. 723. The broker is entitled to his commission as damages for the breach of an exclusive sale contract, if during the life of such a contract, the owner sells the property to a purchaser procured by his own efforts, or by other agents, or if the broker during such period produced a customer ready, able and willing to buy the property. Harris v. McPherson, supra, 171, 115 A. 723.
That the complaint does not allege that the plaintiff was the procuring cause of the sale is inconsequential. Harris v. McPherson, supra, 168, 171, 115 A. 723. That the complaint does not allege that the defendants and the purchaser entered into a specifically enforceable agreement of sale during the exclusive ninety-day period is also of no importance. During the life of an exclusive sale contract, an agreement between the owner and the ultimate purchaser to sell and buy, whether or not specifically enforceable, gives rise to a cause of action on the part of an exclusive broker who uses reasonable efforts to sell the property. To place any other interpretation on the meaning of 'sale' in an exclusive sale contract would encourage connivance. That the complaint does not allege any type of fraud is of no moment since the complaint sounds in contract and not in tort. Finally, that the complaint does not allege the other facts specified by the defendants in their demurrer is also of no moment in view of our determination that the complaint states a cause of action. The demurrer was properly overruled.
The defendants originally assigned a number of errors in portions of the court's finding of subordinate facts and in its conclusions. Most have not been pursued in their brief and, therefore, these are treated as abandoned. Martin v. Kavanewsky, 157 Conn. 514, 516, 255 A.2d 619; Katz v. Brandon, 156 Conn. 521, 524, 245 A.2d 579. We consider the assignment of error pursued, relating to the court's conclusion that the defendants, during the term of their agency agreement with the plaintiff, made an agreement to sell their property to Willie Barnes, the ultimate purchaser. This attacked conclusion is to be tested by the finding and it must stand unless it is legally or logically inconsistent with the facts found or unless it involves the application of some erroneous rule of law material to the case. Mayock v. Martin, 157 Conn. 56, 62, 245 A.2d 574, cert. denied, 393 U.S. 1111, 89 S.Ct. 924, 21 L.Ed.2d 808; Commission on Human Rights & Opportunities v. Veneri, 157 Conn. 20, 23, 244 A.2d 401.
The facts as found reveal the following: On April 11, 1968, the plaintiff and the defendants entered into the...
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