Knight Realty Co., Inc. v. Caserta

• Decision Date: 06 December 1939
• Citation: 126 Conn. 162,10 A.2d 597
• Court: Connecticut Supreme Court
• Parties: KNIGHT REALTY CO., Inc. v. CASERTA et al.

10 A.2d 597

126 Conn. 162

KNIGHT REALTY CO., Inc. v. CASERTA et al.

Supreme Court of Errors of Connecticut.

December 6, 1939

Rehearing Denied Jan. 18, 1940.

Appeal from Superior Court, Fairfield County; Frank P. McEvoy Judge.

Action by the Knight Realty Company against John Caserta and others to recover a commission on the sale price of real estate brought to the superior court and tried to the jury. Verdict and judgment for defendants, and plaintiff appeals.

No error.

Charles Weingarten and John B. Canty, both of Bridgeport, for plaintiff-appellant.

Samuel E. Friedman, of Bridgeport, for defendants-appellees.

Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS JJ.

AVERY Judge.

The plaintiff brought this action seeking to recover for services as real estate broker in procuring a customer for the defendants' real estate. The case was tried to the jury and a verdict returned in favor of the defendants from which the plaintiff has appealed. The only questions involved on this appeal are claimed errors in the charge of the court of the jury relating to the right of the seller to terminate the broker's employment.

At the trial, the plaintiff claimed to have proved these facts: Prior to May 9, 1938, the defendants listed real estate belonging to them with the plaintiff, a real estate broker. The sale price was $20,000, payment to be in cash after deducting existing mortgages and adjustments of taxes, interest, etc., the commission to be 5 per cent. of the purchase price. The plaintiff, through its officers and employees, endeavored to make a sale and incurred expenses in advertising the property, and a short time prior to May 9, 1938, interested Altieri in the purchase. Altieri made an offer of $17,400 to an officer of the plaintiff who discussed this offer with the defendant John Caserta and the latter agreed to take $19,000 as the purchase price payable in cash after deducting existing mortgages and adjustments of interest, rent, etc. A little later, on May 9th, a written contract of sale was drawn and signed by the Altieris agreeing to purchase the property on these terms and a check of $500 was deposited by them by way of deposit. That evening an officer of the plaintiff submitted the contract to the defendants who declined to sell. The Altieris waited for a month for the defendants to consummate the sale and during that time were ready, able, and willing to purchase upon the terms agreed but the defendants refused to conclude the transaction.

The defendants claimed, among other things, first, that they never agreed to sell the property for $19,000, and, second, that before the contract of sale was made between the plaintiff and the Altieris they had notified the plaintiff that they would not sell the property.

In its instructions the trial court informed the jury that, ‘ If the defendants or either of them intended to withdraw the properties from the market for sale and not to sell them but to keep them themselves, then they were required, either or both of them, to act in good faith in the matter. In other words, the defendants or either of them could not make an agreement with the plaintiff and then arbitrarily cancel it or abrogate it and deprive the plaintiff of its commission if it had been earned. They were required to act reasonably under all the circumstances and they could not knowingly permit the plaintiff to continue in its efforts to sell the property without notification within a reasonable time by the defendants or either of them, that the defendants had changed their minds or determined not to sell the properties or that they had sold them to someone else. The defendants did have the right to sell the property to someone else while the plaintiff was endeavoring to find a purchaser for it. The defendants did have a right to say to the plaintiff at some stage of these proceedings that they had decided to withdraw the properties from the market and not to sell them for any reason whatever it might be, but, in doing that, the defendants were required to exercise good faith and to treat the plaintiff reasonably, and if the defendants did treat the plaintiff reasonably in that respect and did not arbitrarily withdraw the properties from the market and did not arbitrarily refuse to accept the purchaser whom the plaintiff claims to have found, then * * * the defendants would not be liable.’

The substance of the plaintiff's contention on this appeal is that the trial court should have informed the jury that under the circumstances of this case, the defendants could not withdraw after the plaintiff had secured a customer ready, able, and willing to buy and had notified the defendants to that effect. The general principle is stated to be, ‘ If the principal has given to the broker what purports to be his complete terms and the broker produces a customer ready, able, and willing to enter into the transaction on those terms, the principal cannot thereafter avoid paying the agreed commission by declining to enter into the transaction, or by insisting upon variations of or additions to such prescribed terms which the customer is unwilling to accept.’ Restatement, 2 Agency, 1039. ‘ The general listing of property with a real estate broker for sale, without special agreement, does not give rise to such mutual obligations as in themselves constitute a contract. 1 Mechem, Agency, § 31. Such a listing of property approximates rather an offer by the owner, which he may withdraw at any time, but which ripens into a contract when the broker meets its terms...