Ice v. Maxwell

• Decision Date: 04 December 1900
• Citation: 61 W.Va. 9
• Court: West Virginia Supreme Court
• Parties: Ice v. Maxwell et al.

61 W.Va. 9

Ice

v.Maxwell et al.

Supreme Court of Appeals of West Virginia.

Submitted June 15, 1900.

Decided December 4, 1900.

1. Brokers Sale of Heal Estate Compensation.

Where an agent is empowered to procure a purchaser for real estate within a stipulated time, and is to receive a certain compensation for his services, he will not be entitled to recover such compensation unless he furnishes a purchaser within that time.

But where the owner or principal has waived the performance of the contract within the time agreed upon, and accepts (lie services of the agent and recognizes and treats the contract as still in Force, the agent will be entitled to compensation, (p.11.)

3. Same Question for Jury.

Where there is evidence showing or tending to show that the time within which a contract was to have been performed has been waived, or that the contract has been continued, the question should be submitted to the jury. (p. 12.)

4. Same Waiver of Conditions of Contract.

Where the contract is thus continued, or the time within which the sale was to have been made is waived, without reference to the agent's compensation, the presumption is that he is entitled to recover the sum originally agreed upon. (p. 12.)

5. Same.

If an agent is empowered to procure a purchaser for real estate at a certain price, and for his services is to receive a stipulated compensation, such agent will be entitled to recover the compensation fixed, where he procures a purchaser with whom the owner negotiates a sale, although the owner may accept a less sum than that at which he authorized the agent to make sale. (p.12.)

6. Compensation.

To entitle an agent to recover for services rendered, it is not necessary to show an express request. A request may be implied from all the facts and circumstances of the case. (p. 15.)

7. Estoppel.

Ordinarily, if one labors for another, or renders him services in his business from which the owner received a benefit, and the one who receives the services stands by and sees what is being done without making objection, ho is estopped to deny that the services were rendered at his request, (p. 19.)

8. Pkincipal and Agent Acts of Agents.

If a person acts as agent without authority, and his acts are ratified, he is entitled to compensation the same as though he had been duly authorized. (j. 19.)

Error to Circuit Court, Randolph County.

Action by E. Clark Ice against W. B. Maxwell and others. Judgment for plaintiff, and defendants bring error.

Reversed, and New Trial Granted.

Bent & Spears and Thomas R. Horner, for plaintiffs in error.

Harding & Harding, for defendant in error. Sanders, Judge:

This is an action of assumpsit, brought in the circuit court of Randolph county by E. Clark Ice against W. B. Maxwell, E. P. Loudin, William Flint and Arnold Cunningham. To a judgment dismissing the action, the plaintiff applied for and obtained a writ of error.

The plaintiff assigns as error the giving of three certain instructions for the defendants, and that the verdict is contrary to the law and the evidence.

By instruction number one, the jury were, in effect, told if they believed from the evidence that a contract was entered into between the plaintiff and defendants, in December, 1902, by which the latter agreed to pay to the plaintiff five hundred dollars provided he would furnish a purchaser for the Achelles and Stockbridge lands at thirty dollars per acre, and provided further that he would furnish such purchaser prior to the 28th day of February, 1903, or before the defendants should themselves sell the land to a imrchaser other than the one furnishsd by the plaintiff, and that the plaintiff failed to furnish the purchaser within said time, or to notify the defendants that he had made sale of the property, that they should find for the defendants.

Instruction number two in effect presents the same question as is presented by instruction number one. Therefore, they may be disposed of together.

The objection insisted upon is that these instructions are binding, and by them it is made imperative that the plaintiff furnish a purchaser at thirty dollars per acre before the 28th day of February, 1903, and that unless the jury believe from the evidence that such purchaser was furnished within that time, or the defendants notified of such purchaser, then they should find for the defendants.

Maxwrell and Cunningham had the agency to sell about sixteen hundred acres of land in Randolph county from the owners, Stockbridge and Achelles. This agency was to expire on the 28th day of February, 1903. After having procured the agency, Maxwell solicited the plaintiff- to find a purchaser for the land, and they had some conversations in regard to it, but without coming to any definite conclusion. Later the defendant Cunningham, in the presence of Maxwell, also requested the plaintiff to find them a purchaser. It was finally agreed that the plaintiff would undertake to do so, and in consideration thereof he was to be paid the sum of five hundred dollars. The time within which the purchaser was to be furnished is in dispute. The defendants claim that it was to have been done before the 28th day of February, 1903, while the plaintiff claims that the time was not limited. The defendants also claim that the purchaser to be furnished was one who would buy the land at the price of thirty dollars per acre, while the plaintiff claims that he was only to price it to prospective purchasers, and that the defendants were to finally agree with them as to the purchase price of the property. The plaintiff's agency was not exclusive. He had only to put prospective purchasers in communication with Maxwell and Cunningham, who were to conduct all negotiations in consummating the purchase, and were to show the land.

It is undisputed that the purchasers for the property were not furnished prior to the 28th day of February, 1903. On the 27th day of February, before the agency expired, the defendants purchased the property. After this time, and about the 11th of March, the plaintiff introduced to the defendants, Maxwell and Cunningham, parties who, a few days afterwards, entered into a contract for the purchase of the land in question, at the price of twenty-seven dollars per acre.

In view of these facts, should the jury have been told that unless the plaintiff found a purchaser at the price of thirty dollars per acre, before the 28th clay of February, 1903, they should find for the defendant? While it is true there is a conflict in the evidence upon these points, and the jury may have found that the plaintiff contracted to furnish a purchaser at thirty dollars per acre before the 28th day of February, yet in the light of all the evidence and circumstances in the case, it is contended that these instructions misconceive the case and fall short of presenting it to the jury in its entirety, and that inasmuch as they are binding, and direct a verdict for the defendants, that this should not have been done. Where an agent contracts to furnish a purchaser for lands at a stipulated price, and such agent does furnish a purchaser whom the owner accepts, and in the negotiation of the transaction the owner agrees upon and accepts a different price from that at which the agent was instructed to sell, still such agent would be entitled to his compensation. It cannot be said that where an agent has procured a purchaser for a piece of property, that the owner can deprive him of his commission or compensation by accepting such purchaser and agreeing to take a less sum than the agent agreed to furnish the purchaser for. "If an agent with authority to sell on a a certain commission, in the event of a sale procures a purchaser at the price and on the terms authorized, who would take the property at the price, and the owner of the property steps in, ignores the agent and sells to the purchaser so secured, at the same price and on the same terms, or for a less price, and on the terms proposed to the purchaser by the agent, even if they were different from the terms stipulated in the authority to sell, the owner is liable to pay to the agent the amount of commission stipulated to be paid. He will not be permitted to take advantage of the negotiations made with the purchaser by the agent, and then escape the liability to pay him the stipulated commission.'' Reynolds v. Tompkins, 23 Wl Va. 235. "If the agent introduces the purchaser, or gives his name, whereby the sale is effected, although the sale be perfected by the principal, and even though the owner vary the terms from the first negotiation, he will be entitled to compensation." Beauchamp v. Wiggins, 20 Mo. App. oil. ''Where by a special contract, a broker is not to be paid commissions unless he sells the property at a stipulated price, the sale by him at such a price is a condition 'precedent to his right to compensation, unless pending the negotiations and whilst the agency remains unrevoked, the owner consents to a sale at a different price. If a broker introduces the purchaser or discloses his name to the seller, and through such introduction or disclosure negotiations are begun and the sale of the property is effected, the broker is entitled to his commissions, although, in point of fact, the sale may have been made by the owner. Where property is sold at a particular price with the consent of the owner, the broker who effected the sale is entitled to his commissions, although he may not have been requested by the owner to sell at that price, under an agreement to pay commissions." Jones v. Adler, 84 Md. 440; Beauchamp v. Higgins, 20 Mo. App. 514; limes v. Henry, 36 N. J. L. 328: Clark & Skyles on Agency, section 773, p. 1665, citing numerous cases. "As to whether the services rendered by an agent in any particular case amounts to such performance as will entitle him to commissions or compensation must be determined from the facts and circumstances of the case," Clark & Skyles on Agency, section 771, p. 1657.

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