Ferguson v. Harris

• Citation: 254 S.W. 329,200 Ky. 146
• Parties: FERGUSON v. HARRIS ET AL.
• Decision Date: 22 June 1923
• Court: Court of Appeals of Kentucky

254 S.W. 329

200 Ky. 146

FERGUSON v. HARRIS ET AL.

Court of Appeals of Kentucky.

June 22, 1923

Rehearing Denied Sept. 28, 1923.

Appeal from Circuit Court, Fayette County.

Action by L. D. Harris and another against J. W. Ferguson to recover a broker's commission. Judgment for plaintiffs on directed verdict, and defendant appeals. Affirmed.

John J Williams, of Paris, for appellant.

Allen &amp Duncan, of Lexington, for appellees.

THOMAS J.

Appellees and plaintiffs below, L. D. Harris and George D. Speakes were partners engaged at Paris, Ky. in the business of real estate brokers. Some time in the latter part of October 1917, appellant and defendant below, J. W. Ferguson, listed for sale with plaintiffs his farm in Fayette county containing 444 acres at $135 per acre. They began a search for a purchaser, and on November 6 following they induced W. E. Davis, a prospective purchaser, to look at the farm, which was shown to him by Harris, and the latter arranged with Ferguson for a meeting between the two at Ferguson's house on that evening. The conference lasted about two hours or more and resulted in Ferguson writing and signing this proposition:

"I hereby agree to sell to W. E. Davis my farm at Avon, Ky. for $140 per acre including farm implements & teams 1/3 cash Bal 1 & 2 years with interest. This proposition is binding for ten days but may be withdrawn any time before accepted by mail. Engine cutter not included. This Nov 6th 1917."

It is shown in the record that the price was increased in the proposition $5 per acre above the listed price with plaintiff, in order to take care of the personal property included in the proposition. After leaving Ferguson's house and on the same day, Davis addressed to him this communication of acceptance, which he signed:

"Hereby I accept your proposition to accept your farm at Avon, Fayette county, Kentucky, containing according to your estimate, 444 acres at the price of $140.00 per acre, and in full accord with the terms of the written proposition which you made me. This is my acceptance of the proposition and my agreement to purchase the farm and other property, as per proposition, and you may get up deed when you desire, but I suppose that I can see you next Saturday and that we can arrange for the completion of the trade and execute the papers. Upon receipt of this acceptance please advise me that you have received it and when and where to meet you."

Whereupon defendant telegraphed him, "Will meet you in Lexington on Saturday." Davis failed to appear on Saturday or on any other day for the purpose of executing the contract, and in the meantime Ferguson and Harris, who seems to have been the chief actor for the firm of Harris & Speakes, had some conversations concerning the matter to one of which we will hereafter refer.

Twenty days after the acceptance of defendant's proposition by Davis, the two met in a hotel in Lexington and engaged in a conversation or negotiations concerning the sale of the farm and the contract which they had made with reference thereto. That meeting resulted in the execution of a new and independent contract which was drawn with extreme particularity and formality, and in which defendant gave to Davis and a joint purchaser, J. E. Johnson, an option to buy the land upon the same terms contained in the original proposition of November 6, 1917, as to price and terms of payment, but it differed from the first contract in that Davis and Johnson were to have until March 1, 1918, to determine whether they would accept the option and purchase the farm, and it was stipulated and agreed that if they declined to do so they would forfeit to defendant the $2,500 which they paid at that time. A short while prior to the agreed date (March 1, 1918) for the carrying of that option into an executed conveyance and otherwise performing its terms, Davis and Johnson notified defendant that they declined to exercise the option and that he could keep the $2,500 deposit left with him, which he did. The agreed commission due plaintiffs under the terms of listing the land with them amounted to $1,198.80, and this action was filed by them against defendant in the Fayette circuit court to recover that sum upon the ground that they had complied with their brokerage agreement in every respect, and that when Davis accepted defendant's proposition on November 6, 1917, their commission was earned, and that they had demanded of defendant payment of it, which he refused to make.

The answer, as amended, consisted of a denial of some material parts of the averments of the petition, and in another paragraph averred that between November 6, the date of the first contract, and the 26th of the same month, the date of the option contract, Harris said to defendant in a conversation about Davis refusing to comply with his contract of November 6, "You go see him, and any arrangement you make with him will be satisfactory to me," and that pursuant to and because of that statement the option contract was executed, and defendant relies on it as a relinquishment of plaintiff's right to commission on any sum in excess of the $2,500 forfeit, and, further, that the statement and defendant's action thereon constituted an equitable estoppel against plaintiffs from claiming commission under the original contract; to which paragraphs the court sustained a demurrer filed by plaintiffs. Another paragraph of the answer pleaded certain ordinances of the city of Lexington requiring a license fee of real estate brokers, and that plaintiffs had not complied therewith, and for that reason could not enforce their contract for the commissions sued for, to which paragraph a demurrer filed by plaintiffs was likewise sustained upon the ground that plaintiffs were not regularly engaged in the business of real estate brokers in the city of Lexington, and that the casual meeting between Harris and Davis resulting in the execution of the original contract was not transacting the business of real estate brokers in Lexington within the meaning and contemplation of the ordinance.

A trial before a jury resulted in a directed verdict in favor of plaintiffs for the full amount of their commissions, upon which judgment was rendered, and, the court declining to set it aside on a motion for...