Equitable Life Assur. Soc. of U.S. v. Home
| Decision Date | 28 March 1939 |
| Docket Number | 28640. |
| Citation | 88 P.2d 887,184 Okla. 542,1939 OK 174 |
| Parties | EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES v. HOME. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where a landowner employs a real estate broker to sell his land and the broker furnishes a purchaser ready, willing and able to buy upon the terms and conditions proposed by the seller such agent has earned his commission, and if the seller then refuses to comply with his contract, the agent is not required thereafter to procure or tender to the seller an enforceable contract.
Appeal from District Court, Garfield County; J. W. Bird, Judge.
Action by C. R. Home against the Equitable Life Assurance Society of the United States to recover on a contract for the sale of realty. From a judgment in favor of the plaintiff, the defendant appeals.
Judgment affirmed.
Bowman & Greer, of Kingfisher, and Simons, McKnight, Simons Mitchell & McKnight, of Enid, for plaintiff in error.
W. E Crowe, of Enid, for defendant in error.
The defendant in the trial court has appealed from a judgment rendered against it in favor of plaintiff, for commission earned under a broker's contract to sell certain farm lands.
Plaintiff in his petition alleges that the defendant in November, 1934, was the owner of numerous farms located in Garfield and surrounding counties, and that on said date the defendant through its agent employed the plaintiff to sell several of such farms, including the one here involved, which were at that time listed with him for that purpose. After such allegations of employment he further alleged: "That said plaintiff has duly performed all the conditions on his part, advertised said farm for sale and solicited prospective purchasers, and on or about the 3rd day of March, 1936, found a purchaser, to-wit: Lloyd Hall, who was ready, able and willing to buy and pay for said farm the sum of $8,000.00, and sold the same to said purchaser at said price, but that the defendant failed, neglected and refused to close said sale and consummate the same, and failed, refused and neglected to pay the commission of $300.00 which is due and owing this plaintiff as agreed upon, and still refuses to pay the same."
Plaintiff's evidence was to the effect that in November, 1934, he received from the defendant's agent a list of several farms for sale. Some of the farms were listed at a "suggested price" on which the defendant's agent must receive confirmation from defendant's home office. On others of the farms listed, including the farm in question, a fixed or set price was placed thereon. The said price on the farm involved herein was $8000. His evidence further shows that he advertised this farm, with others, for sale and over a period of several months' time sold several farms for the defendant, all the deals being fully consummated and he having been paid his commission; that in March, 1936, he interested a Mr. Hall in the purchase of this farm, taking him out to see it several times, and at that time Mr. Hall offered to purchase the farm at a price of $7800, which offer was communicated to defendant's agent and immediately refused; the agent saying: "No, Home, I don't think we would take seventy-eight hundred dollars for it, we can get eight thousand," and he further said, "You go back and work on the man some more and I think we can get eight thousand dollars." Plaintiff again saw Mr. Hall and obtained an offer of $7900, which was likewise communicated to defendant's agent and immediately refused. Whereupon plaintiff obtained from Mr. Hall an agreement to buy the land at the fixed price of $8000.
This oral agreement on the part of Hall to buy was immediately communicated to the office of the defendant's agent. He was out of town, but upon his return some two or three days later, he advised plaintiff that land values had increased and that he did not know whether or not the company would sell at $8000. The evidence further shows that defendant's agent advised his company that Mr. Hall would purchase at $8000, and further advised it not to sell at that price. Several days thereafter the agent advised plaintiff that the defendant would not sell and would not pay his commission. The evidence is undisputed that at all times above mentioned Mr. Hall was ready, willing, and able to purchase the farm and pay $8000 cash therefor.
The defendant's evidence was to the effect generally that its agent did not fix a set price on the farm when he listed the same with plaintiff; that the price was at all times subject to the approval of the defendant's home office, and that no price or amount was fixed on the farm until the offer was approved or accepted by defendant's home office after the same was received by it.
It is to be observed that the chief issue of fact between the parties was whether or not a fixed price was made by the defendant at which the plaintiff might sell the farm. The issues were determined in favor of the plaintiff by general verdict of the jury, and inasmuch as same is supported by competent evidence we accept, for the purpose of this opinion, the plaintiff's version thereof.
One of the points of error raised by defendant concerns the asserted requirement of the law that a broker employed to sell real estate must procure for his employer an enforceable contract of purchase, or present to the employer a person ready, able, and willing to purchase before the broker is entitled to his commission where the sale has not in fact been consummated. The point is made in connection with the assertion that the petition does not state a cause of action, as well as in connection with other questions discussed in the briefs.
In opposition to defendant's contention we are cited to many decisions of this court, among which are Carson v. Vance, 35 Okl. 584, 130 P. 946. We quote paragraph 1 of the syllabus thereof: "A real estate agent authorized to sell land for another for a stated price for a certain compensation has earned his commission when he produces a purchaser ready, willing, and financially able to purchase the land upon the terms and conditions agreed upon."
We observe that the broker was therein held to be entitled to a commission, though he did not procure a written contract and did not present the customer personally to the land owner. We note further, however, that our question here was not therein specifically passed upon.
In Bleecker v. Miller, 40 Okl. 374, 138 P. 809, we held in paragraph 5 of the syllabus as follows: "Where a real estate broker furnishes a purchaser ready, willing, and able to buy upon the terms and conditions proposed by the seller, such agent has earned his commission, and if thereafter the seller refuses to comply with his contract, the agent is not required thereafter to procure or tender to the seller an enforceable contract." See also Garland v. Carpathia Pet. Co., 99 Okl. 210, 226 P. 379; Bateman v. Richard, 105 Okl. 272, 232 P. 443; American Oil & Refining Co. v. Clements, 99 Okl. 204, 225 P. 349; Pliler v. Thompson, 84 Okl. 200, 202 P. 1016; Worley v. Carroll, 110 Okl. 199, 237 P. 120; Lewk v. Abbott, 121 Okl. 157, 248 P. 605, and Koch v. E. D. Smith Co., 170 Okl. 136, 39 P.2d 18.
The defendant relies on Gilliland v. Jaynes, 36 Okl. 563, 129 P. 8, 46 L.R.A.,N.S., 129, Reynolds v. Anderson, 37 Okl. 368, 132 P. 322, 46 L.R.A., N.S., 144, and Scott v. Kennedy, 152 Okl. 165, 3 P.2d 907. An examination of these and other opinions of this court, without relation to the facts of the particular case, would seem to indicate conflict in the decisions. Due consideration of the facts in the particular case, however, discloses no irreconcilable conflict.
In discussing the several opinions we find it convenient to quote from 8 Amer.Jurisprudence, page 1089, paragraph 173, as follows: ...
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