Gillette & English v. Carroll & Hogan

• Decision Date: 12 March 1923
• Docket Number: 223
• Citation: Gillette & English v. Carroll & Hogan, 248 S.W. 900, 157 Ark. 492 (Ark. 1923)
• Parties: GILLETTE & ENGLISH v. CARROLL & HOGAN
• Court: Arkansas Supreme Court

248 S.W. 900

157 Ark. 492

GILLETTE & ENGLISH v. CARROLL & HOGAN

No. 223

Supreme Court of Arkansas

March 12, 1923

Appeal from Benton Circuit Court; W. A. Dickson, Judge; reversed.

Judgment reversed and cause remanded.

McGill & McGill, for appellant.

Owner had right to make sale of property unless made to purchaser procured by brokers. Harris & White v Stone, 137 Ark. 23; McCombs v Moss, 121 Ark. 533; Hardwick v Marsh, 96 Ark. 23; Nerakorick v. Union Trust Co., 89 Ark. 412; Hill v. Jebb, 55 Ark. 574; English v. Wm. George Co. (Texas) 117 S.W. 996. Instruction No. 2, only one presenting appellant's theory of case, should have been given. Broker entitled to commission if "procuring cause", but not where agent of purchaser effected sale. Scott v. Patterson, 53 Ark. 49; Hinton v. Marshall, 76 Ark. 375; Pinkerton v. Hudson, 87 Ark. 506; Branche v. Morse, 85 Ark. 462; Stilwell v. Lally, 89 Ark. 195; Mow v. Irwin, 89 Ark. 289; Porter v. Hall, 97 Ark. 23; Hodges v. Boyley, 102 Ark. 200; Simpson v. Blewitt, 110 Ark. 87; Meyer v. Holland, 116 Ark. 271; Horton v. Beall, 116 Ark. 273; Brannon v. Poole, 142 Ark. 48. A broker cannot act for both parties without disclosing fact to principals. Murphy v. Willis, 143 Ark. 1; Featherstone v. Stone, 82 Ark. 381; Taylor v. Godbold, 76 Ark. 395. Utmost good faith required. Taylor v. Godbold, 76 Ark. 395; Dallas v. Moseley, 150 Ark. 210; Wright v. Burnett, 150 Ark. 154. Right to commission for sale effected by another broker or third person. Nance v. Smyth (Tenn.), 99 S.W. 698. Hurxthal v. Dalby (Mo.), 153 S.W. 1066, 9 C. J. 914; Rich v. Robertson (Conn.), 7 A. L. R. 81.

Lee Seamster, for appellee.

Appellant cannot complain of court's failure to instruct on point not having requested a correct instruction. Brewitt v. State, 150 Ark. 279; Wharton v. Jackson, 87 Ark. 528; Holmes v. Bluff City Lbr. Co., 97 Ark. 180; Hayes v. State, 129 Ark. 325; Gunter v. Williams, 137 Ark. 530. Question of lack of good faith not raised here first time. Mallock v. Stone, 77 Ark. 95. Exceptions not argued abandoned. Harris v. Smith, 133 Ark. 250; Holland v. Doke, 135 Ark. 372; Taylor v. Walker, 149 Ark. 134.

OPINION

SMITH, J.

Gillette and English owned a ranch in the State of Oklahoma, with certain personal property thereon, which they decided to sell or exchange, and with that purpose in view they prepared a circular letter descriptive of their property, which they mailed to a large number of real estate agents. One of these letters was received by Carroll and Hogan, partners as Carroll & Hogan, residing at Bentonville, in this State, and engaged there in the real estate business.

Gillette represented himself and English in the transaction out of which this litigation arose, and Carroll represented himself and Hogan.

Carroll testified that he and Gillette met and discussed the letter, and Gillette listed the ranch with him to be sold or exchanged, and he told Gillette that he would list the ranch with a number of subagents who were cooperating with him in selling and in exchanging lands, and that if he, or any of those subagents, negotiated a sale or an exchange of the ranch, he would expect a commission of two and one-half per cent., and Gillette assented and agreed to pay the commission.

Among the other real estate brokers notified by Carroll of this arrangement was R. C. Leeper, of Springdale, Arkansas, who agreed to find a purchaser or some one with whom an exchange could be made, and Carroll accompanied Gillette to Springdale and introduced him to Leeper as a man who would negotiate a sale or exchange, and some time thereafter, and pursuant to this understanding, Leeper found one McClinton, with whom Gillette made an exchange for the property of McClinton, and a commission is claimed, on the theory that, by virtue of the introduction of Gillette to Leeper, Carroll & Hogan thereby became the procuring cause of any sale or exchange of the ranch to any customer Leeper might find and himself represent in making a purchase or exchange for the ranch, although Carroll & Hogan might have nothing else to do towards bringing about the sale or exchange. The theory of the case was that Leeper could be, and was to be, the agent of Carroll & Hogan to procure a purchaser for Gillette, and also to be the agent of such purchaser in making an exchange with Gillette.

Shortly before the consummation of the exchange with McClinton, Carroll wrote to Gillette that if he (Gillette) traded with McClinton, a commission would be expected on the theory stated above. The deal with McClinton was closed, and Gillette refused to pay a commission, and this suit was brought to recover it, and there was a judgment as prayed, from which is this appeal.

Carroll did not claim to have an exclusive agency, or any agency for any given time, and the right of Gillette to make the sale was not questioned. The insistence is that Gillette promised to pay a commission if Carroll & Hogan themselves, or if they, through one of their subagents, negotiated a sale or an exchange; and this latter thing they did through Leeper.

The court submitted the case to the jury under instructions to find for the plaintiffs if the facts were found to be as contended by Carroll, and we think no error was committed in so doing, as one may agree to pay commissions for services of almost any character. At least, there is no legal objection to his doing so. It is insisted, however, that the instructions did not properly present the theory of Gillette's defense, and we think that contention is well taken.

The testimony shows that Carroll accompanied Gillette to Springdale and introduced Leeper and Gillette, and Carroll endeavored to exchange the ranch for a hotel owned by a customer of Leeper, but this deal failed, and thereafter Carroll admittedly did nothing further towards selling or exchanging the ranch, except in so far as Leeper represented the firm of which Carroll was a member.

Leeper testified on behalf of the plaintiffs, and it is quite obvious from a reading of his testimony that he was highly friendly to the plaintiffs. He testified that he told Gillette that Carroll would expect a commission if the McClinton deal was consummated, yet he admitted that in all his negotiations with Gillette he was representing McClinton, and that Gillette was without representaion. He further testified that the McClinton deal hung fire for a period of several months, and finally McClinton himself took charge of the negotiations, and thereafter no one acted for either Gillette or McClinton, but when the exchange between them was closed McClinton paid him the agent's commission agreed upon.

Gillette testified that Carroll was never at any time his agent, and had no more right to claim a commission than any one of the other hundred or more real estate brokers to whom he sent his circular letter, which was nothing more than an inquiry whether any of the persons to whom the circular was sent had a customer who might become interested in purchasing or trading for the ranch. He testified that, for a period of several months, negotiations proceeded between himself and Leeper, and, so far from ever being advised that Leeper was his agent and was attempting to procure him a purchaser, he at all times regarded Leeper as his adversary, with whom he was trading at arm's length. He denied that Leeper told him that Carroll was expecting a commission if the McClinton deal went through. He admitted receiving the letter from Carroll & Hogan in which they stated they would expect a commission if the McClinton deal was made, but he dismissed it from consideration on the ground that there was no agreement to support the claim.

An instruction numbered 2 was asked by the defendants, which, in our opinion, should have been given, but which the court refused. It reads as follows:

"If you find from the evidence that defendants mailed a...