Hummer v. Engeman

• Decision Date: 26 April 1965
• Citation: 206 Va. 102,141 S.E.2d 716
• Parties: Grace T. HUMMER, Individually, etc. v. George H. ENGEMAN.
• Court: Virginia Supreme Court

Page 716

141 S.E.2d 716

206 Va. 102

Grace T. HUMMER, Individually, etc. v. George H. ENGEMAN.

Supreme Court of Appeals of Virginia.

April 26, 1965.

Rehearing Denied June 14, 1965.

Richard E. Hill, Leesburg (George M. Martin, Weaver, DiZerega & Majer, Leesburg, on brief), for plaintiff in error.

William W. Nickels, Leesburg, J. Sloan Kuykendall, Winchester (Stilson H. Hall, Leesburg, Kuykendall & Whiting, Winchester, on brief), for defendant in error.

Before EGGLESTON, C. J., and BUCHANAN, SNEAD, I'ANSON, CARRICO and GORDON, JJ.

SNEAD, Justice.

Grace T. Hummer, individually, and as administratrix of the Estate of Aubrey L. Hummer, hereinafter called defendants, appealed from an order entered January 3, 1964, whereby George H. Engeman, sometimes hereinafter called plaintiff, recovered a judgment against defendants in the sum of $9,440 for a real estate commission.

Initially, plaintiff filed a bill in chancery praying that the court decree that he was entitled to a real estate commission of $9,480 (5 per cent of $189,600) and that defendants be ordered to make payment or to direct the settlement attorneys to do so. Defendants demurred to the bill on the ground that plaintiff's allegations were 'purely legal and not cognizable in a court of equity.' The demurrer was sustained, and pursuant to the provisions of Code, § 8-138 the case was transferred to the law side of the docket, with leave to plaintiff to file amended pleadings. Thereafter, plaintiff amended his pleading by filing a motion for judgment. A demurrer thereto was partially sustained and motions for summary judgment made by both parties were overruled. Subsequently plaintiff filed an amended motion for judgment and defendant filed their grounds of defense.

A trial was had on June 6, 1963. After plaintiff had rested his case, defendants moved the court to strike plaintiff's evidence, but the motion was overruled. At the conclusion of all the evidence defendants renewed their motion to strike plaintiff's evidence. Whereupon, the trial court, out of the presence of the jury, stated that it appeared that there was no issue of fact for the jury to determine and that either plaintiff or defendants were entitled to a judgment as a matter of law. Plaintiff then moved the court to strike defendants' evidence and enter a summary judgment for him. Ruling on the motion was reserved.

Without objection the court discharged the jury stating: 'Gentlemen of the jury, I am pleased to tell you at this time that counsel has agreed that there is now no issue of fact before the jury; that The Court will have to decide this case as a matter of law.' The case was set down for further argument and by order of January 3, 1964, the court entered judgment in favor of plaintiff against defendants for $9,440, which amounted to 5 per cent of $188,800. The order stated that 'thereafter' defendants moved to impanel a jury to assess damages and that the motion was overruled. It is from this order that defendants appealed.

The evidence discloses that plaintiff, a licensed real estate broker, had been informed that the Hummers 'were thinking of selling' their 236 acre farm in Loudoun county. He visited them for the purpose of securing a listing of the property, and on August 21, 1959, he entered into a 'Sales Agreement' with them. The agreement had been prepared by plaintiff, and it stated in part:

'In consideration of procuring a purchaser and advertising therefor, we do hereby appoint George H. Engeman * * * the sole and exclusive agent to sell or dispose of our property * * * for a minimum purchase price of $188,800.00; taxes, insurance, interest etc., to be adjusted to settlement on the following terms: 25% of the purchase price in cash at settlement, interest only at 5% payable annually for 3 years, the unpaid 75% balance of the purchase price to be curtailed in seven equal payments with interest as aforesaid on the fourth, fifth, sixth, seventh, eighth, ninth and tenth anniversaries of settlement.

'Subject to prior sale, this agency shall begin at midnight, August 20, 1959 and shall continue for 30 days thereafter and thereafter until terminated by us upon 10 days prior notice in writing.

'If, during the time of said agency, or within 30 days thereafter, the said property shall be sold to any person procured by either or us, we agree to pay the said George H. Engeman a commission of 5% of the total selling or exchange price and we agree to direct the settlement attorney to pay the said George H. Engeman his commission from the proceeds of cash paid at settlement.' (Italics supplied.)

The plaintiff immediately undertook to sell the farm. He advertised the property by 'word of mouth' and contacted his 'best clients', acquaintances, and other brokers. He showed the property to Irving Newcomb and to Edwin J. Noyes.

Engeman, the plaintiff, secured from Noyes a signed contract for the purchase of the land together with his check for $5,000 as a deposit on the purchase price of $188,800. The contract was dated August 27, 1959, and it provided, among other things, that Noyes was to pay in cash at settlement 'within 180 days' $47,200 (25 per cent of the purchase price); that in consideration of the cash payment '40 acres to be selected by the Purchaser is to be released free and clear with additional acreage to be released at the rate of one acre for each $1,200 curtail payment', and that the purchaser was 'to give back a first deed of trust to be secured by the balance of the acreage in the sum of $141,600 with interest thereon at 5% per annum payable annually with further provision for curtail payments of $20,220 on or before 4 years from date of settlement and $20,230 on or before five, six, seven, eight, nine and ten years from date of settlement.' (Italics supplied.)

On August 28, the day after Noyes had signed the contract, Engeman delivered it and the check for $5,000 to the Hummers. Engeman testified that Hummer 'read it all over, and he turned around and said, 'Mama, the place is sold.' And he said to me, 'This is all right.' And then he said, 'Well, you know, tomorrow is Saturday and would you mind if I kept this and let my lawyer read it over for technicalities?'' Engeman left the contract and the check with the Hummers and stated that he would contact them the first part of the next week 'and see what Mr. White [Hummer's attorney] had said about the contract.'

Several days thereafter Engeman telephoned Hummer who informed him that his attorney had objected 'to the fact that the contract called for release of land in consideration of the down payment.' Engeman told Hummer that he would 'come up and talk with him' about the objection and that he was 'sure we can work that part of it out'. Hummer agreed to discuss the matter, but when Engeman went to see him in a day or so he was not at home and could not be located. The following day Engeman received a letter from Hummer, dated August 31, which stated:

'This is to advise you that the exclusive agency to sell my farm of 236 acres in Broad Run District is hereby revoked cancelled and terminated.

'The contract which you submitted for Mr. Edwin Noyes is not acceptable for several reasons, some of which I have outlined to you previously. I am returning it herewith together with mr. Noyes check. I am sorry that you did not keep your appointment to meet me in Leesburg today.

'Will you please return the agency contract to me.'

Thereafter, through other real estate brokers, the Hummers entered into a contract for the sale of their farm to Camp Luckett, Inc. for $189,600. The contract was dated August 26, 1959, but it was stipulated that it was executed by the Hummers on September 3 and by Camp Luckett, Inc. on September 7. After the contract was executed an addendum was added to it which provided in part: 'The commission to be paid to the agents shall be $15,000.00, of which amount $12,000.00 shall be held in escrow until any and all claims of George H. Engeman for a real estate commission based on the sale of this farm have been disposed of.' It also contained this clause: 'We agree that...