Hart v. Warder

• Decision Date: 15 January 1953
• Docket Number: No. 5546,5546
• Citation: 1953 NMSC 3,252 P.2d 515,57 N.M. 14
• Parties: HART v. WARDER.
• Court: New Mexico Supreme Court

Page 515

252 P.2d 515

57 N.M. 14

HART v. WARDER.

No. 5546.

Supreme Court of New Mexico.

Jan. 15, 1953.

Daniel W. Caldwell, Springer, for appellant.

V. A. Doggett, Raton, for appellee.

COMPTON, Justice.

Appellee, plaintiff below, brought this action to recover the sum of $500 as commission for the sale of certain personal property belonging to appellant. In response to a motion to make more definite and certain, it was admitted that the contract of employment is oral.

The cause was tried to the court and the findings material to a decision are substantially as follows: During the latter part of the year 1949, appellant listed with appellee for sale his stock of merchandise consisting of hardware and furniture and agreed to pay a commission of 5% on the sales price. Thereafter, on or about May 1, 1950, appellee found an acceptable purchaser therefor, E. G. Cooper, who was ready, able and willing to buy the furniture only, for a consideration of $10,000, which resulted in a written contract between appellant and Cooper. The contract provides for the sale of furniture of the value of $10,000 on an inventory basis, payable $1,600 cash and the balance upon delivery on or before June 1, 1950. Subsequently, on May 12, 1950, the parties mutually rescinded the contract upon refund on the sum of $300 to Cooper, after which appellant refused to pay a commission.

The controversial provision of the contract reads:

'And the second party further agrees that if he shall fail to comply with the terms of this agreement, on his part to be kept and performed, then the first party may retain the said sum of $1,600, as liquidated damages for the second party's breach of this agreement, and both parties shall thereupon be released their obligations hereunder.'

The questions for decision are (a) whether Chapter 19, Laws of 1949, approved March 2, 1949, section 75-143, 1941 Comp. Sup., nullifying contracts for the sale or purchase of lands, tenements, hereditaments, or interest therein for a commission or other compensation, unless evidenced by a written memorandum, nullifies the agreement, (b) the sufficiency of the evidence to support the material findings, and (c) whether the sales contract itself is enforceable. The questions will be treated in that order.

The title of the act reads: 'An Act Relating to Real Estate Brokerage Contracts'. Clearly the act is one dealing with contracts relating to lands; tenements, things of a permanent nature; and hereditaments, things capable of being inherited with land as distinguished from personal property. So, its scope cannot be extended to embrace contracts relating to personal property. Expressio unius est exclusio alterius.

It is asserted that the material findings are without support in the evidence, particularly as to the sale of furniture alone. There is evidence, substantial in character, that appellant agreed to pay a commission on the sale of the property which appellee might secure, whether of hardware and furniture together, or the stock of furniture alone. Appellee testified to as much, and we think the objectionable finding was warranted.

Further, a broker is entitled to a commission according to the contract if, while his employment is in force, he procures a purchaser to whom the owner makes a sale upon satisfactory terms to himself, but different from those limited to the broker. Frost v. Texas Gulf Sulphur Company, Tex.Civ.App., 17 S.W.2d 121; Hutton v. Stewart, 90 Kan. 602, 135 P. 681; Burgess v. Cole, 69 Colo. 341, 194 P. 611; Minks v. Clark, 70 Colo. 323, 201 P....