Hollister v. Frellsen

• Decision Date: 31 October 1927
• Docket Number: 26639
• Citation: 148 Miss. 568,114 So. 385
• Court: Mississippi Supreme Court
• Parties: HOLLISTER v. FRELLSEN. [*]

114 So. 385

148 Miss. 568

HOLLISTER v. FRELLSEN. ^[*]

No. 26639

Supreme Court of Mississippi

October 31, 1927

Division B

1. CONTRACTS. To constitute contract by telegram or correspondence, minds of parties must meet on same proposals and acceptance; to constitute contract by telegram or correspondence, acceptance of proposal must be as made.

In order to constitute a contract by telegram or correspondence it is necessary for the minds of the parties to meet on the same proposals and acceptance. The acceptance of the proposal must be as made.

2 CONTRACTS. Unilateral contract signed by party may be withdrawn before other party has performed act binding contract.

Where a unilateral contract is signed by a party, it may be withdrawn at any time before the other party has performed an act binding the contract upon his part.

Suggestion of Error Overruled Nov. 28, 1927.

APPEAL from circuit court of Jackson county.

HON. W. A. WHITE, Judge.

Attachment suit by Rudolph M. Frellsen against J. J. Hollister to recover commissions for the sale of real estate. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Judgment reversed and cause remanded.

Colmer & Herring, for appellant.

I. Before a broker can maintain an action on a contract for commissions there must have been some contractual relationship of employment between the broker and the owner of the property either express or implied. 90 Fla. 357; 106 So. 77; 4 R. C. L. 298-9; 19 Cyc. 219, 240, 275, 278; 192 Ill.App. 270; Myers & King v. Coleman, 93 Miss. 226, 46 So. 249; 226 S.W. 463 (Texas); Kolb v. Bennett Land Co., 74 Miss. 267, 21 So. 233; Jayne v. Drake, 41 So. 372; 106 N.E. 304 (Ohio); 139 P. 131 (Okla.).

The position of the appellant here is that the plaintiff in the trial of the case in the lower court failed to establish a contract either express or implied and, therefore, the court should have granted the defendant a peremptory instruction. This case falls within the rule announced in Myers & King v. Coleman, 93 Miss. 226, 46 So. 249. See, also, 4 R. C. L., page 299; Geier v. Howells, 47 Colo. 345, 107 P. 255, 27 L. R. A. (N. S.) 786, 139 A. S. R. 227-28; 19 Cyc. 219.

II. A unilateral statement made at the request of the broker is revocable at will by the maker without notice of revocation and without liability to the maker where no contractual relationship existed or could be based on the statement. Kolb v. Bennett Land Co., 74 Miss. 567, 21 So. 233; Jayne v. Drake, 41 So. 373; Comstock Bros. v. North, 41 So. 374, 4 R. C. L., par. 12; 125 S.W. 148 (Ky.).

The courts seem to have universally held that a sale, contract of sale or any other act of the principal inconsistent with his previous statements or authority to a broker or his agent will constitute a revocation of any further proceedings under pending negotiations. The question regarding notice of revocation which has arisen in actions between brokers and owners is not involved in this case for the reason that there was no contractual relationship existing between the plaintiff and the defendant, nor was there any employment of the plaintiff by defendant to sell the land, nor any request express or implied that he represent him in any capacity. Therefore, the defendant was under no obligation to notify the plaintiff that he had made a sale of the land prior to the plaintiff's client's offer.

That a unilateral offer or statement to a broker will be revoked by a subsequent sale by the principal in person or through another agent is, we think, unquestioned.

Ford, White, Graham & Gautier, for appellee.

Was there a contract between Hollister and Frellsen? A reading of the telegrams between Hollister and Frellsen answers this question in the affirmative. It will be noted that the telegram authorized and directed Frellsen to sell bungalow at a certain price, on fixed terms, and fixes the commission to be paid to Frellsen if he makes the sale within the time provided. It would be impossible in a telegram of such few words to express the intention of the sender more succinctly and definitely, yet appellant's counsel makes much over the telegram and contends that the telegrams do not constitute a contract between the parties, insisting and arguing at length that Hollister merely gave Frellsen the right to buy the property and that further communication between the parties was necessary before a contract could have been entered into.

We submit, as a proposition of law, that while the seller of real estate may revoke the power of an agent before the agent performs his agreement, a seller cannot repudiate to deprive the agent of commission after a purchaser is obtained who is ready, able and willing to carry out the contract. Cook v. Smith, 119 Miss. 375; Long v. Griffith, 113 Miss. 659; Jenny v. Smith-Powell Realty Co., 125 Miss. 605; Keller v. Jones & Warden, 72 So. 89; Myers et al. v. Coleman, 93 Miss. 226, is not on all fours with the present case. A mere reading of that case shows that there is not any similarity.

It is a well-established principle of law based upon decision of all jurisdictions that where the husband who owns a homestead lists it with a broker for sale, and the broker produces a purchaser ready, able, and willing to buy and the sale is not consummated because of the wife's refusal to sign the deed, the broker earns his commission and may recover it at law. Tebo v. Mitchell, 63 A. 327, 5 Pennewill 356; Staley v. Hufford, 85 P. 763, 73 Kan. 686; Cook v. Fryer, 3 Ky. Law Rep. 612; Martin v. Sipprell, 101 N.W. 169, 93 Minn. 271; Young v. Ruhwedel, 96 S.W. 228, 119 Mo.App. 231; Goldberg v. Gelles, 68 N.Y. 400; 33 Miss. 797; Fleming v. Hattan, 142 P. 971, 92 Kan. 948; Johnson v. Frier, 210 P. 966; Cofield v. McGraw & Garner, 77 So. 981; Chandler v. Gaines-Ferguson Realty Co., 224 S.W. 484; Morgan v. Whatley & Whatley, 87 So. 846; Carson v. Brown, 229 S.W. 673; Cotten v. Willingham, 232 S.W. 572.

It is contended that Hollister sold this property after he had listed it with Frellsen and that the sale was a revocation of Frellsen's authority. Appellant attempted to prove a prior sale by introducing a night letter of October 19th, from Bacot to Hollister, and by introducing a purported contract, which in fact was an offer of Mrs. Coleman to Harry W. Fitzpatrick to purchase this place.

The court properly excluded the night letter because anything Bacot stated to the witness, Hollister, would not be competent on the trial between plaintiff and defendant and the telegram from Bacot to defendant at most was a request for authority to sell on terms stated in the telegram.

The court excluded the purported contract with Fitzpatrick because the purported contract was not a contract between Mrs. Louise B. Coleman and the defendant Hollister, but merely a proposition made by Mrs. Coleman to Fitzpatrick.

It is our further contention that the telegrams between Hollister and Frellsen constituted Frellsen an exclusive agent for the sale of the property from October 17th to November 1st, and in support of that contention, see Hardwick v. Marsh, 130 S.W. 524 (Ark.); Blumenthal & Co. v. Bridges, 120 S.W. 974.

In this case we recognize that where a listing of property with a broker is not supported either by money consideration or a definite promise to sell, such listing may be cancelled at any time before the agent has actually made a sale. However, when he has brought the owner a purchaser who is able, ready and willing to buy on the terms of the listing, all the authorities are to the effect that he is entitled to his commission.

OPINION

ETHRIDGE, J.

The appellant, Hollister, owned a bungalow, situated on the beach at Pascagoula, Jackson county, Miss., which was the only real estate owned by him in that county. He lived there with his wife and family for some time prior to April, 1925, at which time he went to Rochester, N.Y. In July or August of that year, his family joined him in New York and continued to live there until this case was tried.

The appellee, Frellsen, was a real estate broker in the city of Pascagoula, Miss. The mother of the appellant, Hollister, some time prior to the transaction herein involved, advised Frellsen that her son was anxious to sell his property. During the summer and fall of 1925, there was considerable real estate activity at Pascagoula; and the appellee, Frellsen, while showing a lot adjacent to the property of the appellant to a customer, one Van Buren, was asked by him whether or not Hollister's property was for sale, and, if so, that he desired and was willing to buy the property if it could be secured. Frellsen then wired Hollister at Rochester, N. Y., on October 16, 1925, as follows:

"Wire quick best cash price your beach bungalow including five per cent. commission for me."

Hollister's answer to...