Hays v. Goodman-Leonard Realty Co.

• Decision Date: 04 April 1927
• Docket Number: 26391
• Citation: 111 So. 869,146 Miss. 766
• Court: Mississippi Supreme Court
• Parties: HAYS v. GOODMAN-LEONARD REALTY CO. [*]

111 So. 869

146 Miss. 766

HAYS v. GOODMAN-LEONARD REALTY CO. ^[*]

No. 26391

Supreme Court of Mississippi

April 4, 1927

Division A

1 BROKERS. Broker, to recover commission, need only show that he procured purchaser ready, willing, and "financially able" to purchase.

In order to entitle a broker to his commission, he is only required to show that he procured a purchaser who was ready, willing, and financially able to purchase, and term "financially able," as used with reference to financial responsibility, does not necessarily mean that such purchaser shall have all money in cash, but merely that he must be able to command the money to close deal on reasonable notice.

2 BROKERS. Evidence of business standing and financial reputation of proposed purchaser is admissible, as bearing on broker's right to commissions.

On question of financial responsibility of proposed purchaser as bearing on broker's right to recover commissions evidence based on financial reputation and business standing of such purchaser is admissible.

3 BROKERS. Evidence held to show that broker procured purchaser ready, willing, and able to purchase property.

Evidence in broker's action for commissions held sufficient to support finding that he had procured purchaser who was ready, willing, and able to purchase property within time and on terms fixed by agreement.

4. BROKERS. Owner's objection to terms of proposed sale held immaterial, where she informed brokers that she had decided not to sell property.

Where owner informed brokers, after being notified that they had found a purchaser who was ready, willing, and able to purchase, that she had decided not to sell property, objections to terms of proposed sale, relative to kind of deed, manner of securing deferred payments, and payment of current taxes, were immaterial.

HON. W. A. WHITE, Judge.

APPEAL from circuit court of Harrison county, HON. W. A. WHITE, Judge.

Suit by Alfred Goodman and another, doing business under the trade-name of Goodman-Leonard Realty Company, against Mrs. B. R. Hays. Judgment for plaintiffs, and defendant appeals. Affirmed.

Judgment affirmed.

Leathers & Sykes, for appellant.

I. Some terms of the sale as to the furnishing of an abstract, the payment of the taxes and as to how the deferred payments bearing six per cent interest were to be secured were left open. As to these elements in the contract of sale, there was no understanding between the owner and the purchasers and the owner never gave to appellee agent these terms, nor were they specified at the time of the listing of the property for sale by the owner with the appellee. The case, therefore, on this point falls squarely within Johnson v. Sutton, 49 So. 970; Cooke v. Smith, 80 So. 777; and Skermetti Realty Co. v. Devill, So. Adv. Sheets, March 12, 1927.

II. The second ground relates to the alleged purchasers being able and ready to buy the property. There is no proof in the record of any probative value that the purchasers were financially able to carry out the terms of their contract of sale. The burden was on the appellee to show by a preponderance of the testimony that these purchasers were able and we submit that under the proof in this record the appellee has wholly failed to meet this burden. Reynor v. Mackrill (Iowa), 1 A. L. R. 523; Johnson v. Sutton, 94 Miss. 544; Cooke v. Smith, 119 Miss. 383, 80 So. 777.

The revocation of appellee's authority to sell the land took place November 5, Thursday afternoon, and the purchasers were not procured and did not offer to do anything until Friday, November 6. It is true that it is in evidence that the appellee advertised this property for sale in the Gulfport Daily Herald and that this court held in the case of Sunflower Bank v. Pitts, 66 So. 810, that although a listing contract with a broker given without consideration is unilateral and may be revoked at will, yet it may be enforced by the broker electing to accept it and incurring expense in an attempt to find a purchaser. Still the facts on which the opinion in the Pitts case rest are totally different from the facts in the case at bar.

The incurring of expense in the instant case was an afterthought, and was not a consideration so far as the evidence in this record shows for the listing of the property by Mrs. Hays with appellee, as were the facts in the Pitts case above mentioned; a totally different state of facts and a different situation altogether from that which led the court to the conclusion that it announced in the Pitts case, supra. The agreement, therefore, under which the property was listed by appellant with appellee was nudum pactum and was revocable at will. Cobb v. Bennett Land Co., 74 Miss. 567.

The revocation of the listing of the land by appellant with appellee took place on Thursday afternoon, November 5, before any purchaser was produced who even said be was willing, ready and able to take the property on the incomplete terms as they were specified. The case of Ferguson v. Quick, 79 So. 83, is not in the way of this contention of appellant because in that case the sale was actually made to the purchaser whom the agent procured although it was later closed up and consummated by the owner herself.

The method of securing the deferred payments is a material part of the contract of sale as recognized by this court in Sullivan v. Turner, 82 So. 325. The only way that this deficiency in the terms could be cured was by the agreement of the appellant and the purchasers as to the method of security and until that was done and the sale actually consummated appellee was entitled to no commission under the law as laid down in the cases cited. The agent is not entitled to his commission until the sale is actually consummated in such a situation. Roell et al. v. Ofutt, 103 So. 239.

Mize & Mize and R. W. Thompson, Jr., for appellee.

Plaintiffs found purchasers willing, able and ready to buy the property on the plaintiffs' listed terms given by the defendant and had notified the defendant they had such purchasers; hence, they were entitled to their commissions. The law is well laid in 9 C. J., page 623, section 102, with a long line of authorities supporting the text, particularly: Holden v. Lyons (Mo.), 157 S.W. 811; Smith v. Tatum, 140 Ga. 719; Vaughn v. McCarthy, 59 Minn. 199; Johnson v. Stewart, 153 S.W. 611; Cotton v. Meadows, 127 S.W. 221.

In this particular case, the defendant arbitrarily refused to carry out the contract without any reason whatever, and after plaintiffs had tendered their purchasers who were able, ready and willing to buy on her terms.

The testimony shows that it was the general custom, well known, that the seller of property always furnished an abstract unless there was a special agreement otherwise. The taxes became and were a lien on this property for the year on the first day of February and, therefore, it was the duty of the owner to pay the taxes for the year in the absence of an agreement to the contrary. So the fact that nothing was mentioned about furnishing an abstract or payment of the taxes becomes immaterial.

Long v. Griffith, 113 Miss. 661, holds just as we contend for in this case: That where a broker makes a sale for the owner of lands in accordance with his contract and the buyer is ready to carry out the terms of the contract but the owner refuses to do so, then the broker is entitled to his commission. That case is similar to the case at bar as no mention whatever was made about the taxes or about an abstract in the contract between the broker, Long and the owner, Griffith.

Cook v. Smith, 119 Miss. 375, is applicable on two points. One is that the agent is entitled to his commission when he finds a purchaser ready, willing and able to buy upon the terms specified; and, second, it holds that while the seller of real estate can revoke the power of the agent before the agent performs his agreements, yet he cannot repudiate such agency so as to defeat the agent's commission after the agent has found a purchaser who is willing to carry out the contract.

When the plaintiffs found purchasers who were ready, able and willing to buy, of which they at once notified the defendant, they had then performed their contract and their authority was irrevocable unless the defendant paid their commission. 4 R. C. L., page 307, section 49.

As to the ability of the purchasers to pay, the testimony showed that all four of these parties put up the earnest money at once and all of them were ready to go ahead and put up the cash consideration as soon as the deal could be closed.

In Steele v. Lippman, 115 N.Y.S. 1099, it was held that the broker did not have to show, in order to recover compensation for procuring the loan, that the proposed lender was able and willing to carry out his offer where the client refused to go on with the transaction as that is presumed. See, also Huchinson v. Plant, 218 Mass. 148, where a man's reputation as to his financial responsibility was held to...