Dorman Realty & Ins. Co., Inc. v. Stalvey

• Decision Date: 13 March 1975
• Docket Number: No. 19974,19974
• Citation: Dorman Realty & Ins. Co., Inc. v. Stalvey, 212 S.E.2d 591, 264 S.C. 94 (S.C. 1975)
• Court: South Carolina Supreme Court
• Parties: DORMAN REALTY & INSURANCE COMPANY, INC., Respondent, v. Theta W. STALVEY and Jack Jones, Appellants.

Page 591

212 S.E.2d 591

264 S.C. 94

DORMAN REALTY & INSURANCE COMPANY, INC., Respondent, v. Theta W. STALVEY and Jack Jones, Appellants.

No. 19974.

Supreme Court of South Carolina.

March 13, 1975.

H. E. McCaskill, Conway, for appellants.

John C. Thompson, Conway, for respondent.

LITTLEJOHN, Justice.

Theta W. Stalvey, a resident of Columbia, was the owner of a 240 acre tract of land in Horry County. Her husband, David Stalvey, attended to the property and his actions were on her behalf and as her agent. About the last of August or the first of September of 1970, Stalvey listed this 240 acre tract with the Dorman Agency, authorizing Dorman to bring about a sale. Dorman began advertising, making contacts, and taking those actions which a real estate broker normally takes in an effort to procure a purchaser.

On or about September 14, 1970, Stalvey became anxious to move the property in order to procure money for another investment and contacted Dorman's office, telling Mr. Hendrix (vice president of the company) that he was going to look for a buyer for the property himself. Stalvey testified positively concerning this conversation. Hendrix does not admit the conversation, but declines to deny it.

On September 17, 1970, Jack Jones went to Columbia and entered into a written contract with Stalvey to buy the property. Before signing the contract Stalvey informed Jones that the question of payment of a commission to Dorman might arise. Jones was going to New York and needed the contract that day. He told Stalvey, and later confirmed it in writing, that if it developed that Dorman were entitled to a commission he (Jones) would pay it. He still takes that position but contends that none is due.

On the following day, which was September 18, Dorman procured a written sales agreement from J. Watson Smith and mailed it to Stalvey in Columbia.

The sale to Jones was completed; obviously the proposed sale to J. Watson Smith was not completed. Neither Jones nor Stalvey paid Dorman a commission, and this action was brought by Dorman against both of them to recover $12,000.00 allegedly due by reason of the oral contract whereby Stalvey listed the property with Dorman. The jury returned a verdict against both Jones and Stalvey in the amount of $12,000.00, representing 10% Of $120,000.00, which was the price at which the property was listed with Dorman. Only Jones has appealed.

It is the theory of Dorman, as set forth in his complaint, that the oral contract to sell was an exclusive sales contract such that a commission is due even though Stalvey himself sold the property.

On the other hand it is the position of Jones, as set forth in his answer, that the oral contract was an exclusive agency contract only, such that Stalvey could sell the property himself without paying a commission to Dorman.

And so the underlying issue to be resolved is the nature of the oral contract which existed between Dorman and Stalvey.

This Court has never been called upon to discuss and to distinguish 'exclusive sales contracts' as contrasted with 'exclusive agency contracts.' The courts that have previously resolved such disputes have interpreted an exclusive sales contract to be an agreement that gives the realtor sole right to sell the property, and a commission must be paid even if the owner sells the land. Exclusive agency contracts have been determined to be agreements which merely prevent the owner from listing the property with other realtors. In exclusive agency contracts the owner is not prevented from finding his own buyer, and if he does he need not pay a commission. Annot. 88 A.L.R.2d 936 (1963).

Counsel for Jones moved for a nonsuit, for a directed verdict, and for judgment notwithstanding the verdict, contending at all stages of the proceeding in essence that the evidence was not susceptible of the inference that Stalvey had relinquished his own right to sell the property.

An owner's right to sell his own real estate is inherent and this right is retained even when a broker is employed, unless the contract provides in unequivocal terms or by necessary implication that the owner's right to sell has been relinquished. The right of an owner to sell his own property is an implicit condition of every contract of agency unless negatived.

It is obvious that both E. A. Dorman, president, and Hendrix, vice president of the company, are experienced in the matter of real estate sales contracts. In their testimony th...