Dowler v. Suburban Improvement Co.

• Decision Date: 17 February 1931
• Docket Number: No. 6826.,6826.
• Citation: 157 S.E. 91
• Court: West Virginia Supreme Court
• Parties: DOWLER et al. v. SUBURBAN IMPROVEMENT COMPANY.

157 S.E. 91

DOWLER et al.

v.SUBURBAN IMPROVEMENT COMPANY.

No. 6826.

Supreme Court of Appeals of West Virginia.

Feb. 17, 1931.

Syllabus by the Court.

When, due to the efforts of a real estate agent, a buyer and seller are brought together and a contract of sale of property is executed, though the sale is not consummated, the agent's right to recover commission depends upon the agreementhe entered into with one or the other of the parties relative thereto.

Syllabus by the Court.

A memorandum of agreement between the agent and the vendor relative to the agent's commission, providing that it was to be paid promptly upon delivery of the deed to buyer, is, under the facts of this case, properly interpreted to mean that the delivery of the deed was a condition precedent to payment of the commission.

Error to Circuit Court, Ohio County.

Action by C. H. Dowler and others against the Suburban Improvement Company. To review an adverse judgment, plaintiffs bring error.

Affirmed.

Bryant. Amos & Cummins, of Wheeling, for plaintiffs in error.

Howard & Howard, of Wheeling, for defendant in error.

MAXWELL, J.

From a judgment for defendant by the trial court, without a jury, plaintiffs prosecute this writ of error.

Due to the efforts of William G. Brand, one of the partners in the real estate firm of Dowler & Brand, plaintiffs, defendant entered into a written contract of sale of certain real estate with Henry Hazlett, the pertinent features whereof being that Hazlett was to pay $5,000.00 immediately and the balance, $100,000.00, in six months, at which time a deed for the property was to be delivered to Hazlett. Later the same day that the contract of sale was executed, Mr. John A. Howard drew up a memorandum of agreement which he signed on behalf of defendant and which Brand signed for plaintiffs. The memorandum is as follows:

"March 9, 1928

"Mr. William G. Brand, Wheeling, West Virginia.

"Dear Sir: The Suburban Improvement Company is to pay you a commission of three thousand and sixty dollars (3, 060.00), on the sale of the Howard Residence to Henry L. Hazlett. This is to be paid promptly upon delivery of the deed to Mr. Hazlett.

"Yours very truly,

"Suburban Improvement Co.

"By John A. Howard President.

"Approved: Dowler, Brand Realty Co.

"By W. G. Brand."

Hazlett defaulted after the initial payment of $5,000.00, and the property was never conveyed to him. Nothing was said as to Brand's commission until sixteen months later when Brand wrote defendant demanding payment of it. Upon defendant's refusal to pay, plaintiffs instituted this action upon notice of motion for judgment.

[11 Plaintiffs' contention is that since a valid contract of sale was entered into between vendor and purchaser through Brand's labors, the commission for the sale accrued regardless of the subsequent defalcation of the purchaser. Many cases support the proposition that when an agent for the vendor has procured a buyer ready, willing and able to purchase the property at the price and on the terms prescribed by the vendor, his commission is payable, whether the purchaser completes the contract or not. Linton v. Johnson, 81 W. Va. 569, 94 S. E. 945; 9 Corpus Juris, p. 591, and cases cited; Lunney v. Healey, 56 Neb. 313, 76 N. W. 558, 44 L. R. A. 593, and exhaustive note appended thereto. Nor can defalcation of the vendor defeat the agent's recovery. Reynolds v. Tompkins, 23 W. Va. 229; Hugill v. Weekley. 64 W. Va. 210, 61 S. E. 360, 15 L. R. A. (N. S.) 1262.

But such matters are entirely contractual. Each case must, in the final analysis, rest upon an interpretation of the contract entered into by the agent with the seller or the buyer. Authorities are legion that an agent may bind himself by an agreement making any stipulation which the parties choose a condition precedent to the payment of commission. Parker v. Bldg. & Loan Ass'n, 55 W. Va. 134, 46 S. E. 811; Noyes v. Caperton. 68 W. Va. 13, 69 S. E. 364; Harne v. Pike. 70 W. Va. 489, 74 S. E. 514; Hawkins v. Green, 87 W. Va. 116, 104 S. E. 279; Murray v. Rickard, 103 Va. 132, 48 S. E. 871; Crockett v. Grayson, 98 Va. 354, 36 S. E. 477; Terry v. Bishop Fry Co., 133 Va. 332, 112 S. E. 619; Massie v. Firmstone, 134 Va. 450, 114 S. E. 652; Pfanz v. Humburg, 82 Ohio St. 1, 91 N. E. 863, 29 L. R. A. (N. S.) 533, and note. "Thus a broker employed to buy, sell, or exchange property may be engaged on such terms that he is not entitled to compensation until a contract of purchase, sale, or exchange has been entered into, or until title has been transferred, or until the payment or tender of the purchase money or a certain portion thereof."...