Hennings v. Parsons
| Decision Date | 12 March 1908 |
| Citation | 108 Va. 1,61 S.E. 866 |
| Parties | HENNINGS. v. PARSONS. |
| Court | Virginia Supreme Court |
Rehearing Denied.
1. Brokers—Compensation—Persons Entitled.
Where an owner puts his property in the hands of several real estate agents to sell, the agent who first procures a purchaser is entitled to his commission, to the exclusion of the other agents, unless such right is changed by contract.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 8, Brokers, § 82.]
2. Same—Contract—Exclusive Agency.
A contract authorizing a real estate agent to sell certain property, and agreeing to pay him a specified commission if he sells or aids the owner in selling, and providing that the contract should "continue in force until ten days' notice is given in writing withdrawing the same from market, " does not give the agent the exclusive agency for the sale of the property, so as to entitle him to commission on producing a purchaser after the property has been sold through another agent before the prescribed notice has been given.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 8, Brokers, § 82.]
3. Same—Actions—Evidence.
In an action to recover a commission under a broker's contract, evidence considered, and held to show that the contract under which the commission was claimed was not intended by the parties to give plaintiff an exclusive agency.
Appeal from Circuit Court of City of Richmond.
Motion by W. A. Parsons to recover of H. G. Hennings a commission for the sale of defendant's farm. Judgment for plaintiff, and defendant appeals. Reversed and dismissed.
A. K. & D. H. Leake, for appellant.
W. R. Meredith, for appellee.
This is a motion under the statute by the plaintiff, W. A. Parsons, to recover of the defendant, H. G. Hennings $650, alleged to be due as commissions for services rendered by him in and about the sale of the defendant's farm, "Fairfield, " in Goochland county.
The whole matter of law and fact was submitted to the determination of the circuit court, and judgment given in favor of the plaintiff. This judgment we are asked to review.
The record shows that the defendant placed his farm, "Fairfield, " in the hands of several independent real estate agents for sale; the plaintiff being one of those who was authorized in writing to sell. On the morning of the 18th of January, 1906, the plaintiff, W. A. Parsons, by appointment with the defendant, who was to meet him at the station, proceeded from Richmond to Goochland county with a prospective purchaser from Indiana. The train was behind time, and the arrival of the plaintiff was thereby delayed for an hour and a half. In the meantime R. F. Vaughan, another agent, who had also been authorized to sell, presented himself with a purchaser, to whom a sale was at once made; Vaughan being paid $650 from the proceeds of the sale consummated by him, that being the commissions agreed upon. When the plaintiff arrived with his prospective Indiana purchaser, who was able and ready to buy, he was at once informed by the defendant that the farm had been sold to parties who were then in the house.
It clearly appears from the record that the defendant had been for some time extremely desirous of selling his farm, in order that he might return to the state of Nebraska. The farm had been looked at on several occasions by prospective purchasers, and the defendant anxiously awaited the arrival of some one to whom a sale might be made.
As a general rule, where an owner puts his property in the hands of several real estate agents to sell, the agent who first procures a purchaser is entitled to his commission, to the exclusion of the other agents. Am. & Eng. Ency. of Law, pp. 928, 929.
This general rule may, however, be modified by contract or entirely subordinated to its provisions.
The contention of the plaintiff is, in effect, that he had the exclusive agency for the sale of the farm, and that until he had received 10 days' notice the defendant could not sell through another agent without making himself liable to the plaintiff for his commission. In support of this contention, the plaintiff relies upon the written agreement, which provides that the "contract is to continue in force until 10 days' notice is given in writing withdrawing the same from market."
That part of the contract between the parties, needful for present purposes, is as follows: ...
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