Home Banking & Realty Co. v. Baum

• Decision Date: 09 April 1912
• Citation: 82 A. 970,85 Conn. 383
• Parties: HOME BANKING & REALTY CO. v. BAUM et ux.
• Court: Connecticut Supreme Court

82 A. 970

85 Conn. 383

HOME BANKING & REALTY CO. v. BAUM et ux.

Supreme Court of Errors of Connecticut.

April 9, 1912

Appeal from Court of Common Pleas, Hartford County; John Coats Judge.

Action by the Home Banking & Realty Company against Charles Baum and wife to recover a commission for making a sale of defendants' real estate. Judgment for plaintiff, and defendants appeal. Affirmed.

Bernard F. Gaffney and Mortimer H. Camp, for appellants.

Benjamin W. Alling and George W. Klett, for appellee.

RORABACK, J.

The plaintiff, a corporation located in New Britain, Conn through its officers, acts as a broker in the sale of real estate. The defendants, Charles Baum and wife, each owned an undivided one-half interest in a house and lot in New Britain which they occupied. On August 9, 1909, desiring to sell their real estate, Charles Baum, the husband, signed and delivered to the plaintiff a writing containing the following: " New Britain, Conn., Aug. 9, 1909. I hereby authorize the Home Banking & Realty Co., to sell my property as per schedule on reverse side of this card, and do hereby agree to pay a commission of 2 per cent. on the sale price, if sold or exchanged at price satisfactory to me . [Signed] Charles Baum." The price stated on the reverse side of the card is $5,800. The plaintiff between August 9, 1909, and March 21, 1910, advertised the defendants' real estate for sale, and endeavored to sell it for $5,800, but could not find a customer at that price. On March 21, 1910, the defendant requested the plaintiff to sell the property at a price less than $5,800. On April 13, 1910, the plaintiff found a customer one August Ruchkowski and his wife Marion Ruchkowski, who were ready, able, and willing and who offered to purchase the defendants' property, and to pay therefor $5,600, by assuming a first mortgage on the property of $3,500, giving a second mortgage for $1,100 and paying $1,000 in cash. They also proposed terms as to the payment of interest, taxes, and insurance. On the same day the defendant, Charles Baum, on his own behalf, and on behalf of his wife as her agent, accepted this proposition, and accepted the terms as to the interest, taxes, and insurance. The defendants also agreed that they would come that night and sign a deed for the transfer of their property. Ruchkowski and his wife deposited $1,106.82 with the plaintiff the amount necessary to carry out this agreement. They also deposited with the plaintiff a note and mortgage duly executed for $1,100 on the real estate, and, through an officer of the plaintiff company, offered to fully perform their part of the agreement, of which the defendants were duly notified. The defendants after some delay refused to convey the real estate, unless Ruchkowski and his wife paid $5,800 in cash. The deposit made by Ruchkowski and his wife remained in the possession of the plaintiff until May 7, 1910. During all this period Ruchkowski and his wife were ready, able, and willing to purchase the defendants' real estate upon the terms which had been agreed upon.

It is well settled that a broker in whose hands real estate has been placed for sale by its owner is entitled to the commission agreed upon, when his efforts have resulted in a sale, or in procuring a customer who is ready, able and willing to buy, upon the terms prescribed by the owner. Notkins v. Pashalinski, 83 Conn. 458, 461, 76 A. 1104, 20 Ann. Cas. 1023; Clark v. Thompson, 75 Conn. 161, 163, 52 A. 720; Leete v. Norton, 43 Conn. 219, 227. The plaintiff has earned its commission. The finding shows that the plaintiff procured a customer who was both willing and financially able to pay and who agreed to give $5,600 for the defendants' property, which price they accepted. After the plaintiff had fully completed the arrangements necessary to make a transfer Baum and his wife refused to make a deed of it unless they were paid $5,800 in cash. It was contended on behalf of the defendants that the plaintiff could not recover its commission because the property in question had not been actually conveyed. The broker's right to a commission is not affected by the fact that the deed from the defendants was not drawn up and executed. This was a matter for the defendants, and on which the plaintiff's right to a commission is not dependent. Fitzpatrick v. Gilson, 176 Mass. 477, 478, 479, 57 N.E. 1000. See McCahill v. N.Y. Transportation Co., 201 N.Y. 221, 94 N.E. 616, and cases cited above. The broker had done all that it could. It rendered the stipulated service, and through no fault upon its part the matter was not completed. The efforts of the plaintiff were rendered futile by the refusal of the defendants to convey their property, and therefore they should not be allowed to say that the plaintiff had not performed its contract.

It is also urged that the plaintiff is not entitled to any commission because it does not appear that a sale was made to the satisfaction of the defendants. The repudiation of the acceptance a few days after it was made by the defendants did not affect the plaintiff's claim for remuneration....