Gilchrist v. Clarke

• Decision Date: 05 May 1888
• Citation: 8 S.W. 572
• Parties: GILCHRIST <I>et al.</I> <I>v.</I> CLARKE.
• Court: Tennessee Supreme Court

Page 572

8 S.W. 572

GILCHRIST et al.

v. CLARKE.

Supreme Court of Tennessee.

May 5, 1888.

Error to circuit court, Shelby county; L. H. ESTES, Judge.

Action by Gilchrist & Martin, real-estate agents and brokers, against William Clarke, to recover a commission on a sale alleged to have been declared off by a defective title of defendant. Judgment for defendant, and plaintiffs bring error.

Morgan & McFarland and J. H. Kent, for plaintiffs in error. Miller & Gillham, for defendant in error.

FOLKES, J.

This is an action brought to recover commissions claimed to have been earned by the plaintiffs, as brokers or real-estate agents. The record shows that the plaintiffs, as such brokers, approached the defendant, and offered their services to sell a certain lot owned by the defendant. The defendant fixed the price at $2,100, and agreed to pay the usual commission of 5 per cent. to sell the same. The brokers found a party who expressed a willingness to give $2,000, which, when communicated to the owner, the latter agreed to take, and authorized the plaintiffs to close the trade at the figures named. The proposed purchaser was then furnished by the broker with an abstract of title, and returned shortly thereafter, stating that his lawyer had reported title doubtful as to 10 feet of the lot, on account of an interlap, occasioned by a deed held by the adjacent lot-owner, which deed was subsequent to the defendant's deed. The proposed purchaser heard no more about it, and after awhile went to Europe, giving the matter no further attention, and learned for the first time when called as a witness in this case that the lot had been since sold, but said that he was still willing to take the lot at the price offered, provided the assumed defect in title was cured. It further appears that, when the broker communicated the action of the proposed buyer to the defendant, the latter said that his title was good; that it had been examined by his own attorney, and pronounced good; that he had been in actual possession of the lot, including the 10 feet in question, under inclosure for over 20 years, and covered by the calls in his deed; that his attorney could explain and make clear the whole matter to the attorney of proposed buyer. The attorneys had an interview, from which nothing resulted, and, hearing nothing more about the matter for some considerable time, some other broker made sale of the lot to a less critical purchaser, and the defendant executed deed, and paid the commission to the broker actually effecting the sale. Under these facts, the court, trying the case without a jury, gave judgment for the defendant, except as to actual cost of abstract of title which had been procured by the plaintiffs, and which the defendant expressed at the trial a...