D. N. Toohey & Co. v. Davis

Decision Date03 March 1931
Citation153 A. 832
PartiesD. N. TOOHEY & CO. v. DAVIS. COHEN v. SAME.
CourtNew Hampshire Supreme Court

Exceptions from Superior Court, Coos County; Burque, Judge.

Separate actions by D. N. Toohey & Co. and by Nathan Cohen against Hyman Davis. Verdicts for plaintiffs. On defendant's exceptions.

New trial in the case of the D. N. Toohey & Co., and judgment for defendant in the Nathan Cohen Case.

Actions of assumpsit by D. N. Toohey & Co. to recover a commission for selling real estate under a written agreement with the defendant, and by Nathan Cohen for breach of contract for the sale of the same lands to him made by said company assuming to act as the defendant's agent. The two cases were tried together, with verdicts for the plaintiff in each.

Transferred by Burque, J., on the defendant's exceptions to the denial of his motions for nonsuit and directed verdict in the Cohen Case because of want of authority of Toohey & Co. to make the contract of sale, and in both cases, upon the defendant's exceptions to the admission of evidence and to the denial of requests for instructions and to the charge.

Ovide J. Coulombe and Ira W. Thayer, both of Berlin, for plaintiffs.

Warren W. James, Edmund Sullivan, and Crawford D. Hening, all of Berlin, for defendant.

SNOW, J.

The defendant was a merchant, occupying a store in one of the two blocks which were the subject of the agreements in these suits. The blocks were located in the central business section of Berlin and the property of the wife of the defendant in whose name the title stood. D. N. Toohey & Co. was a partnership engaged in the real estate business in Berlin of which Thomas N. Toohey was manager and salesman. For convenience the company and Toohey will be referred to interchangeably as Toohey.

A written agreement was entered into by the defendant and Toohey on August 11, 1928, which provided: "Whereas Hyman Davis is desiring to dispose of the property on Main street belonging to him and being oh land sixty feet wide and one hundred seven feet and six inches deep, buildings thereon situated known as the Sutton Block and occupied by said Davis and et als, and the Forbush Block occupied by Danneman and Weirner, and whereas the said D. N. Toohey and Company have agreed to use their best efforts and dispose of the same. Now in consideration of such efforts Hyman Davis agrees to pay said Toohey and Company the sum of four per cent. of the amount realized from said property by said Davis, said four per cent. to be paid said Toohey and Company in any event that said property may be sold by them or the said Hyman Davis within a period of six months from date." An agreement supplementary thereto was made on September 5th as follows: "In lieu of the agreement made between Hyman Davis and D. N. Toohey and Company, for the sale of the said Davis premises, dated the eleventh day of August, 1928, it is now agreed by said parties that the said Hyman Davis is to receive sixty thousand dollars ($60,000.00) net for his property, and the said D. N. Toohey is to receive anything over and above said sixty thousand dollars ($60,000.00) which shall be paid for said premises." These papers will hereinafter be referred to as the agency agreement, although, as will be later seen, the phrase is descriptive of its character only in a limited sense.

On September 26th, at Berlin, Toohey, assuming to act under the foregoing agreements, subscribed the defendant's name to a sale agreement which purported to bind him to convey to the plaintiff Cohen, for a consideration of $63,750 the said property except a certain leasehold, "upon, and subject to, the following terms and stipulations, namely;—1. That the purchaser shall pay to the said vendor, upon execution of these presents, a deposit of five hundred dollars ($500.00) on and part of his purchase money, said deposit to be placed in escrow in the hands of Ovide J. Coulombe, an attorney in Berlin, to be delivered to the said Davis when all the conditions of this sale have been complied with, and pay him the residue thereof on the time set for the completion of the purchase, which shall be sixty (60) days from date, and the time, in all respects, shall be of the essence of the contract. 2. The vendor shall prepare, or cause to be prepared, at his own expense, a proper deed of conveyance (with full covenants of warranty) of the premises to the purchaser and shall deliver such deed, or cause it to be delivered, to the purchaser, or his attorney, for examination. 3. The possession shall be retained by the vendor up to the said date fixed for completion of the purchase when the purchaser shall pay the residue of the purchase money and the vendor shall execute such deeds. Whereupon possession shall be delivered immediately to the purchaser. 4. All taxes, water rates, upon said property shall be apportioned between him and the purchaser as from that day, and it is understood that the stipulations herein shall apply to and bind the heirs, executors, administrators, and assigns of the respective parties hereto."

In support of bis exceptions to the admission in evidence of the sale agreement, and to the denial of his motion for a directed verdict in the Cohen action, the defendant contends that such agreement was unauthorized by the agency agreement. This involves the interpretation of the latter.

It is nearly universally conceded that the mere employment of a real estate broker to sell land carries no implied authority to bind his employer by a contract of sale. 4 R. C. L. Brokers, § 14; 1 Mechem Agency (2d Ed.) 797 (1914); Walker Real Estate Agency, (2d Ed.) 31, 32 (1922). The theory on which this doctrine rests is that the character of a broker's undertaking is well known and presumptively his employment, though in writing, is in his capacity as a negotiator merely. 1 Mechem Agency, 792, supra. Fundamentally, the duty he assumes is to bring the minds of the buyer and seller to an agreement for a sale and upon the price and terms upon which it is to be made. Parker v. Estabrook, 68 N. H. 349, 350, 44 A. 484.

Practical reasons for this limitation of authority is well expressed in the often-quoted and much cited case of Halsey v. Monteiro, 92 Va. 581, 583, 24 S. E. 258, 259: "A sale of real estate involves the adjustment of many matters besides fixing the price * * * all of which require conference and time for their completion. They are for the determination of the owner, and do not pertain to the duties, and are not within the authority, of a real-estate agent. For obvious reasons, therefore, the law wisely withholds from him any implied authority to sign a contract of sale in behalf of his principal." McCullough v. Hitchcock, 71 Conn. 401, 42 A. 81; Jones v. Howard, 234 Ill. 404, 410, 84 N. E. 1041; Brandrup v. Britten, 11 N. D. 376, 379, 92 N. W. 453. It follows that one asserting a power in a broker to bind his principal in a sale contract has the burden of showing that such was the intention. This must appear from the agency contract construed in the light of all the existing conditions and circumstances. Whitehouse v. Gerdis, 95 Neb. 228, 234, 145 N. W. 338; 1 Mechem Agency, supra, § 798.

The phrase "to sell" in contracts with real estate brokers "has acquired this restricted and conventional meaning, that is, to secure a purchaser, and * * * standing alone * * * is not sufficient to authorize the agent to enter into a contract of sale binding the principal." Bacon v. Davis. 9 Cal. App. 83, 93, 98 P. 71, 75; Keim v. O'Reilly, 54 N. J. Eq. 418, 423, 34 A. 1073: Stengel v. Sergeant, 74 N. J. Eq. 20, 28, 68 A. 1106; Walker Real Estate Agency, supra. 33, 34; 4 R. C. L. "Brokers," § 14. The industry of counsel has provided us with an exhaustive summary of the decisions in the majority of the American jurisdictions upon the question of the meaning of the words "to sell" in real estate broker's contracts, both when standing alone and when construed with other language and in the light of the situation of the parties or both. These are too numerous for citation here, and will be found in Briefs and Cases, No. 2389.

While the original agency agreement here recites in the preamble that the defendant "is desiring to dispose of the property" and that Toohey & Co. "have agreed to use their best efforts and dispose of the same," the body of the agreement uses the terms "may be sold by them," and the supplement thereto speaks of the contract as an "agreement * * * for the sale" of the property. If in some situations "to dispose of" might, and should, be considered to have a more extended meaning than "to sell," it appears here to have been used interchangeably with the latter phrase. In any event the phrase "to dispose of" has no technical signification (Phelps v. Harris, 101 U. S. 370, 381, 25 L. Ed. 855) which requires us to disregard the evidence tending to show that the employment of Toohey was merely as a real estate broker.

The form and character of the paper of August 11 are significant. It is only by implication an agency agreement "to sell." It purports only to fix the compensation of the broker in case of a sale. The power to "dispose of" or to sell is referred to only incidentally in the prefatory recital, which is so far informal that it does not even mention the price fixed on the property. The agreement was ostensibly drawn with the single purpose of entitling Toohey to share in the commission in case of any sale, whether made by him or his principal. That is all it purports to do. While, by its recital it concedes and assumes the existence of a contract to sell, it does not attempt to define the scope of the agency, and therefore evidences no intention to confer upon the broker any authority beyond that impliedly incident to his calling. It tends rather to confirm its limitation thereto.

Affirmative evidence of the want of any intention to bestow upon Toohey a right to bind the defendant by contract of sale is to be...

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7 cases
  • Driscoll v. Bunar
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • February 7, 1952
    ...plaintiff's efforts that Kennedy was procured as a customer. Glassman v. Barron, 277 Mass. 376, 382, 178 N.E. 628; D. N. Toohey & Co. v. Davis, 85 N.H. 80, 85, 153 A. 832. The only other exception that requires any further discussion is that taken to that portion of the charge relative to t......
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    ...to buy.' Wilson v. Atwood, 81 N.H. 61, 65, 122 A. 797.' Russo v. Slawsby, 84 N.H. 89, 91, 146 A. 508, 509. See also Toohey & Co. v. Davis, 85 N.H. 80, 153 A. 832. In Russo v. Slawsby, supra, 84 N.H. 90, 146 A. 508, it was stated that the requirement of readiness was sufficiently covered by ......
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    ...to confine the authority of this broker to finding a purchaser. In discussing a similar reservation the Court in D. N. Toohey & Co. v. Davis, 85 N.H. 80, 153 A. 832, 835, 'Affirmative evidence of the want of any intention to bestow upon Toohey a right to bind the defendant by contract of sa......
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    ...true the real estate broker was not the defendant's agent, and the decree for the defendant is supported by the record. Toohey & Co. v. Davis, 85 N.H. 80, 153 A. 832. It is therefore unnecessary to consider the argument that the defendant had waived the necessity of obtaining the consent of......
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