Garcelon v. Tibbetts

• Decision Date: 22 December 1891
• Citation: 24 A. 797,84 Me. 148
• Parties: GARCELON et al. v. TIBBETTS.
• Court: Maine Supreme Court

24 A. 797

84 Me. 148

GARCELON et al.

v. TIBBETTS.

Supreme Judicial Court of Maine.

Dec. 22, 1891.

(Official.)

Exceptions from supreme judicial court, Androscoggin county.

Assumpsit by Charles E. Garcelon and another against George H. Tibbetts, There was a judgment for plaintiffs, and defendant excepts. Exceptions sustained.

Tascus Atwood, for plaintiffs.

Newell& Judkins, for defendant.

FOSTER, J. Assumpsit, in which the plaintiffs, as real-estate brokers, claim top recover a certain sum as commissions for services in negotiating the sale of a parcel of real estate belonging to the defendant.

Whether they are entitled to recover at all is the only question presented by the exceptions.

The defendant was the owner of a parcel of real estate which he authorized the plaintiffs to sell so as to net him $2,700. The plaintiffs obtained a purchaser at the price of $2,725. Nothing was said between the plaintiffs and defendant relative to the kind of deed which the defendant was to give the purchaser. The purchaser met the defendant at the plaintiffs' office to pay the money and receive the transfer. The plaintiffs had made a warranty deed of the property to the pur chaser, to be executed by the defendant, which the defendant refused to execute; but he did offer to execute and deliver to the purchaser a quitclaim deed in usual form, with covenant against any claim or title under him. The purchaser refused to complete the transfer unless the defendant would give him a warranty deed of the property, notwithstanding the defendant had good title to the property in question, and the sale was not executed.

Upon this state of facts we think the plaintiffs are not entitled to recover.

The efforts of the plaintiffs to complete the sale failed, not through any fault of the defendant, but by reason of the purchaser end the defendant not being able to agree in reference to the form of conveyance. The purchaser demanded more than the law exacts where there is no agreement, and no form of conveyance is agreed upon. The title was in the defendant. A deed of release or quitclaim of the usual form would have conveyed the defendant's title and estate as effectually as a deed of warranty. Rev. St. c. 73, § 14. An agreement or covenant to convey a good title does not necessarily entitle the covenantee to a warranty deed. Kyle v. Kavanagh, 103 Mass. 356, 359. In this case the contract called for a good title, but was silent as to the kind of deed, and the court held that if the contract was that the plaintiff should give the defendant a good title, "there being no agreement as to the form of the deed, then the delivery to the defendant of the deed of quitclaim was a compliance with the contract on the part of the plaintiff." Gazley v. Price, 16 Johns. 267; Ketchum v. Evertson, 13 Johns. 359; Potter v. Tuttle, 22 Conn. 512.

In the case last cited the court say: "No form of conveyance was agreed upon, and therefore any deed by force of which a clear title in fee would be vested in the plaintiff would be a compliance with the agreement, whether a quitclaim or deed with covenants."

There is a well-defined distinction between the title to real property and the deed by which that title is transferred. The title is the principal thing; the deed is but the muniment or evidence of the title.

No form of conveyance having been agreed upon, the defendant, admittedly having a good title to the real estate in question, was in no fault in not completing the sale on his part, when he offered his quitclaim deed with covenants. The purchaser, however, was not satisfied with a deed that would effectually vest in him a good title to the property. He demanded more than a title. He exacted covenants which the defendant was not willing to give. There was therefore no contract; no agreement for a sale. Consequently no commissions for sale of the property are due from the defendant to these plaintiffs.

Id Wylie v. Bank, 61 N. Y. 416, it was held that, to entitle the broker to commissions, he must produce a purchaser ready and willing to enter into a contract on the employer's terms. This implies and involves the agreement of buyer and seller, the meeting of their minds, produced by the agency of the broker.

In Barnard v. Monnot, 33 How. Pr. 440, it was said that the duty of the broker consisted in bringing the minds of the vendor and vendee to an agreement.

The supreme court of the United States, in McGavock v. Woodlief, 20 How. 221, say that "the...