Kennedy & Kennedy v. Vance

• Decision Date: 04 January 1949
• Docket Number: 33256.
• Citation: 202 P.2d 214,201 Okla. 80,1949 OK 3
• Parties: KENNEDY & KENNEDY v. VANCE.
• Court: Oklahoma Supreme Court

202 P.2d 214

201 Okla. 80, 1949 OK 3

KENNEDY & KENNEDY v. VANCE.

No. 33256.

Supreme Court of Oklahoma

January 4, 1949

Appeal from District Court, Comanche County; Floyd L. Jackson Judge.

Action by Kennedy & Kennedy against Louise G. Vance to recover commission for sale of real estate. Judgment for defendant and plaintiffs appeal.

Affirmed.

Syllabus by the Court.

The owner of land listed with a broker for sale may in good faith sell through his own efforts, without liability to the broker, before the owner is advised that the broker has procured a purchaser ready, able and willing to buy on the terms specified, where the contract of employment does not grant the broker an exclusive right to sell.

E. L Richardson and W. W. Godlove, both of Lawton, for plaintiffs in error.

Thomas & Thomas, of Lawton, Oklahoma, for defendant in error.

HURST Chief Justice.

The plaintiffs, Kennedy & Kennedy, are real estate brokers, with their offices in Lawton, Oklahoma. The defendant, Louise G Vance, who resides in Kansas, owned a farm near Lawton. Prior to October 22, 1943, the plaintiffs and defendant carried on some correspondence with reference to a sale by plaintiffs of said farm. On said date, defendant wrote plaintiffs as follows:

'I received your letter of Oct. 15, several days ago and regret this answer is late.

'I do not know that the person you had as prospective buyer for my farm is still interested or not but my price is still $10,000.00 net to me and subject to the lease.

'This offer is open only until the first of the month after that time if it is still unsold I intend to take it off the market. I might add that you are mistaken in thinking, as you state in your letter, that there is not another person in or around Lawton interested in this land at my price.'

On October 27, 1943, the defendant sold the farm without the assistance of the plaintiffs. On October 31, 1943, the plaintiffs wired the defendant that they had sold the farm for $10,250. The defendant immediately replied that she had already sold the farm.

On the refusal of defendant to pay plaintiffs a commission, this action was commenced to recover a commission of $250. From a judgment for defendant, plaintiffs appeal.

Assuming that the defendant's letter, above quoted, constituted the plaintiffs her agents to effect a sale of her land, it did not confer upon them the exclusive right to make the sale. Cantrell v. McLemore, 119 Okl. 176, 249 P. 417; Head-Berry Co. v. Bannister, 52 Okl. 763, 153 P. 669; 9 C.J. 623, 12 C.J.S., Brokers, § 95. Nor did it confer upon them a power coupled with an interest so as to render it irrevocable. Bowman v. Ledbetter, 173 Okl. 345, 48 P.2d 334 Kennedy v. Hart,

187 Okl. 169, 101 P.2d 808; 2 Am.Jur. 50; 8 Am.Jur. 1100, No. 189; 12 C.J.S., Brokers, § 75, p. 166; 10 A.L.R. 814.

The plaintiffs rely upon Cloe v. Rogers, 31 Okl. 255 121 P. 201, 38 L.R.A., N.S., 366, and Woodall v. Foster, et al., 91 Tenn. 195, 18 S.W. 241. The Cloe case involved an exclusive agency for a term of two years, and the contract contemplated the expenditure of labor and money on the part of the agent, who entered upon the discharge of his duties under the contract. Here, there was no exclusive agency, and it was to exist only for about a week and it does not appear that it was understood that the plaintiffs would expend money and labor in carrying out the contract, since it appears that they had a client who wanted to buy the farm. Furthermore, the quoted letter served notice on the plaintiffs that the defendant had other prospects to whom she might sell. In the Woodall case there was no exclusive agency for any definite time, but the decision is based on the failure of the owner to notify the agent of the sale. We think this case is...