Lasker-Morris Bank & Trust Company v. Jones

• Decision Date: 22 December 1917
• Docket Number: 76
• Citation: Lasker-Morris Bank & Trust Company v. Jones, 199 S.W. 900, 131 Ark. 576 (Ark. 1917)
• Parties: LASKER-MORRIS BANK & TRUST COMPANY v. JONES
• Court: Arkansas Supreme Court

199 S.W. 900

LASKER-MORRIS BANK & TRUST COMPANY v. JONES

131 Ark. 576

No. 76

Supreme Court of Arkansas

December 22, 1917

Appeal from Pulaski Circuit Court, Third Division; G. W. Hendricks Judge; reversed.

Judgment reversed.

Cockrill & Armistead and Edgar H. McCulloch, for appellant.

1. The court erred in its findings of facts and conclusions of law therefrom.

Appellant was employed to sell or change appellee's property. A purchaser was procured and a binding contract entered into which was never carried out through the fault of appellee. No valid defense was shown. 117 Ark. 566. Parol evidence was admissible to show the real consideration of the contract. 10 R. C. L. 1020, par. 213. Specific performance against Raines could have been maintained to compel Raines to pay the $ 4,000. See also A. & E. Ann Cas. 1912-A, 1267; 119 Ark. 6.

Carmichael Brooks & Rector, for appellee.

1. Appellee never agreed to pay the $ 500 commission. The minds of the parties never met. The findings of the court are as conclusive as the verdict of a jury.

2. Good faith was required. The agent of appellant did not act in the utmost good faith as the testimony shows he never disclosed the offer of $ 4,000 cash.

3. Where one party to a contract breaches it, the other may elect to treat the whole contract at an end. 3 Elliott on Cont., § 2026; 3 Page on Cont., §§ 1432-1442; Lawson on Cont. (2 ed.), 525, 531; Black on Rescission and Cancellation, etc., Vol. 1, § 196, p. 507; 30 L. R. A. 30.

4. Specific performance would not lie against Raines to enforce the payment of $ 4,000 cash. 89 Ark. 289; 85 Id. 442.

5. The burden was on plaintiff to show that Raines' objection to the title was a valid one. The special findings were not inconsistent with the general finding. 84 Ark. 359; 106 Id. 296. Raines breached the contract and appellee was not liable. 112 Ark. 567, 571. George E. Jones was never given an opportunity to sign the deed, and his signing was not shown to be necessary.

OPINION

SMITH, J.

Appellant brought this suit to recover a sum alleged to be due as commissions upon a sale of real estate. The suit was prosecuted upon the theory that appellee had employed appellant to negotiate a sale of certain lots owned by her in the city of Little Rock, and that a valid and binding contract had been entered into with a prospective purchaser, which appellee should have caused to be specifically performed, and that, when she failed to do so, and thereby released the prospective purchaser from the obligations of his contract, she did not absolve herself from her liability for the broker's commissions, as these commissions were earned when an enforceable contract, complying with the terms of the agency was entered into with the prospective purchaser. Appellant opened negotiations with a prospective purchaser named Raines, and finally entered into the following contract in writing with him:

"Received of Mr. E. E. Raines the sum of $ 10 as part payment on the east 125 feet of lots 7, 8 and 9, block 175, city of Little Rock, the purchase price of property to be $ 3,500 cash, the assumption by said E. E. Raines of a mortgage for $ 5,000 now on the property in favor of the Union Trust Company, and for the remainder of the purchase price said E. E. Raines is to deed to me, free of all liens and encumbrances, lots 7, 8, 9, 10, 11 and 12, block 8, North Argenta.

"It is understood that Mr. E. E. Raines is to pay the taxes on the property I am selling to him for the year 1915, and I am to pay the taxes on the six lots in Argenta above described, also that I am not to pay any commission out of the above described $ 3,500.

"(Signed)

Sadie L. Jones.

"Stamp, E. E. R., 12/28/1915.

"Accepted, E. E. Raines."

There was also introduced in evidence a writing identical with the one set out except that the name of Raines was signed by M. J. Sullivan, agent. Sullivan was an employee of appellant company, and had charge of the trade for it. His good faith is questioned by appellee, who insists that she was not advised that a cash consideration of $ 4,000 was in fact to be paid, instead of the sum of $ 3,500 as recited in the contract set out above. Sullivan testified that appellee was to receive the $ 3,500 net, and that appellant company was to have the additional $ 500 as its commission, and that this fact was explained to, and understood by, appellee. This suit was brought to recover this $ 500.

The court made the following findings of fact:

"2. Plaintiff was employed by the defendant as her agent to sell or exchange her property described in the complaint.

"3. Defendant did effect an agreement which was in writing between E. E. Raines and the defendant. This agreement was for $ 3,500--defendant to pay no commission. Defendant offered to comply with this agreement and submitted a deed signed by herself, which was refused by Raines on account of her son not having signed it.

"4. The plaintiff was the agent of Sadie L. Jones, defendant in this transaction.

"5. E. E. Raines was ready, willing and able to carry out the above mentioned contract.

"6. M. J. Sullivan, agent for the plaintiff, discussed the transaction with the defendant, stating to her that the deal was for $ 4,000 and that he 'was getting' $ 500 as his commission.

"7. The defendant was told that plaintiff was to get $ 500 commission, but defendant expected that to be included in the purchase price over and above the $ 3,500.

"9. Plaintiff brought defendant and Mr. E. E. Raines together in a contract that was evidenced in writing for an exchange of property and $ 3,500 in cash.

"10. After the making of the written contract E. E. Raines submitted to the agent of the plaintiff a memorandum evidencing an offer of $ 4,000 and an exchange of property."

The court was asked to specifically find whether or not appellee tendered Raines her...