Hight v. Marshall

• Decision Date: 19 June 1916
• Docket Number: 65
• Citation: 187 S.W. 433,124 Ark. 512
• Parties: HIGHT v. MARSHALL
• Court: Arkansas Supreme Court

187 S.W. 433

124 Ark. 512

HIGHT v. MARSHALL

No. 65

Supreme Court of Arkansas

June 19, 1916

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Appeal from Crawford Circuit Court; James Cochran, Judge; affirmed.

Judgment affirmed.

Sam R. Chew, for appellant.

1. The proof shows the relationship of principal and agent. This relationship established, the law requires the highest degree of candor, honesty, fidelity and absolute good faith. Cooley on Torts (2 ed.), p. 615; 82 S.E. 381; 142 P. 1029; 29 Ill. 75; 95 Am. Dec. 568. Appellee by his conduct violated every principle of law and fidelity. He could not have bought for himself and could not deal except within his powers and instructions for his principal. 90 Ark. 301; 62 Id. 598; 103 Id. 484.

2. The evidence that the land had been placed in the hands of others for sale at a certain price was relevant and competent. Appellee was not given the exclusive privilege of selling the land, and appellant had the right to sell the land himself free of any liability to the agent for commission. 174 S.W. 531; 91 Ark. 212.

3. The court erred in giving instructions Nos. I and 2. 87 Ark. 506; 89 Id. 289. There is no proof that appellee ever brought Brett and appellant together. 55 Ark. 574. Appellant's own testimony was sufficient to authorize the giving of No. 4.

Geo. F. Youmans and E. L. Matlock, for appellee.

1. Where a broker has been employed to sell land and a sale is effected, even though it be through negotiations directly between the owner and purchaser, the broker is entitled to his commission if he has been the producing cause of the sale. 53 Ark. 49; 76 Id. 375; 84 Id. 462; 87 Id. 506; 89 Id. 289; Ib. 195; 97 Id. 23.

2. There is no error in the instructions. There is evidence that appellee procured the purchaser. 89 Ark. 195; 115 S.W. 1134.

3. There is no evidence of bad faith or disloyalty.

OPINION

MCCULLOCH, C. J.

This is an action instituted by appellee against appellant to recover commissions alleged to have been earned in the sale of certain real estate. Appellant resides at Mulberry, Crawford County, Arkansas, and owned a tract of 276 acres of land in Oklahoma, only a short distance from Fort Smith. Appellee is in the real estate business at Fort Smith. The lands were listed with appellee, and, according to the testimony, he made considerable efforts toward procuring a purchaser. He showed the land to numerous prospective buyers and finally showed it to W. L. Brett, who subsequently purchased the land directly from appellant.

Appellee alleged in his complaint that he was authorized by appellant to sell the lands for $ 13,000, and that he was to receive a commission of 5 per cent. of the purchase price. Appellant in his answer denies those allegations, but alleges on the contrary that he authorized appellee to sell the land for $ 50 per acre, or $ 13,800, and agreed to pay him the sum of $ 500 as commission if he made the sale at that price, but that appellee failed to make the sale and that he (appellant) sold the land himself to Brett. The case was tried before a jury and a verdict was rendered in appellee's favor for the recovery of the sum of $ 500.

Appellee testified that after appellant listed the land with him for sale at the price of $ 13,000, he showed the property to numerous parties, and that one day appellant approached him and urged him to make a sale and intimated that he might take less than the price he had already named; that shortly afterward he began negotiations with Brett and early one morning took Brett out to see the place, and that on the return he gave Brett, at the latter's request, the name and address of the owner. It seems that on the afternoon of that same day, Brett, without appellee's knowledge, drove over to Mulberry to see appellant and they verbally closed the trade at the price of $ 12,000, which was consummated two or three days later. The evidence does not show that appellant knew at the time he made the oral agreement with Brett that appellee had taken Brett out to see the land or had otherwise negotiated with him.

Appellee testified that the next day a man named Steward, who was appellant's tenant on the place, called at the hotel and left word for him not to take any further steps toward selling the land, and that he thereupon called appellant over the telephone and had a conversation with him about the matter. He undertakes to detail that conversation, and it appears that appellant made evasive statements and was endeavoring to conceal the fact that he was about to close the trade with Brett. Appellee notified him, however, that he had taken Brett out to see the lands and that he would claim a commission. Brett testified that appellee did not give him the name of the owner, but that he ascertained the name of the owner from Steward, the tenant on the place, when he was looking at it. He also testified that on the return trip to Fort Smith, after he and appellee had been out to look at the place, he told appellee that he would not be willing to give $ 13,000 for the place, and that appellee made the following statement to him: "If you will let me work it for you, I might be able to buy it for a little less."

Appellant offered to prove by his own testimony and that of other witnesses that he had listed the lands for sale with other real estate dealers at the price of $ 13,800. This testimony was offered in corroboration of appellant's contention that that was the price at which appellee was authorized to offer the land, and that he was not authorized to sell at a lower price. The court was correct in refusing to permit the testimony to be introduced, for it related to transactions between appellant and other parties and was without probative force in establishing the terms of the contract between the two parties to the present controversy.

It is insisted very earnestly by counsel for appellant that appellee was guilty of infidelity to his principal, which ought to prevent him from recovering commission. It is claimed that his statement to Brett was a breach of his duty to appellant, in that it was his duty to secure the highest price he could get for the land, and that he had offered to serve the prospective purchaser in trying to get the price down as low as possible. We do not think,...