Lewis v. Briggs
Decision Date | 10 December 1906 |
Citation | 98 S.W. 683,81 Ark. 96 |
Parties | LEWIS v. BRIGGS |
Court | Arkansas Supreme Court |
Appeal from Lonoke Circuit Court; George M. Chapline, Judge affirmed.
STATEMENT BY THE COURT.
H. L Briggs and his wife, Blanche W. Briggs, were in January 1905, the owners of 320 acres of land in Lonoke County. George C. Lewis, an attorney at law and real estate dealer undertook to sell this land for them. In pursuance of this purpose, he induced A. J. Cashburn and W. H. Richardson to enter into the following contract with Briggs and wife:
A deed was executed by Briggs and wife to Cashburn and Richardson, conveying the 320 acres land described but excepting the railroad right of way across it, which contained about 8 acres. They placed this deed in the hands of H. W. Guthrie, an officer of the Dairyman Bank of Carlisle, to be delivered upon the payment of the price. Afterwards Guthrie received the following letter in reference to the land which explains itself:
In response to this letter Guthrie notified the parties that Briggs and his wife would not reduce the price on account of the right of way, that he wanted $ 8,000 net to him.
Still later Guthrie received the following letter:
Guthrie notified Briggs of the receipt of this letter, and Briggs withdrew the deed from the bank.
Afterwards Lewis, the agent through whom the sale was negotiated, brought this action against Briggs and wife to recover the $ 1,600 which he was to receive from the proceeds of the sale.
On the trial there was a verdict for the defendants, and Lewis appealed.
Judgment affirmed.
Trimble, Robinson & Trimble, for appellant.
1. The court erred in charging the jury, in effect, that appellant undertook that the purchasers would buy the land at $ 9,600, and that, unless they paid for the land, appellant could not recover.
2. In failing to show good title to the land, and in refusing to reduce the price proportionately for the right of way, appellees were in default. The deed tendered excepted the right of way, hence it did not comply with their undertaking, and the court erred in refusing to instruct that such a deed was not a compliance with the contract.
3. Appellant was entitled to his commission if he found purchasers ready, willing and able to take and pay for such part of the land as appellees had title to, and they refused to convey such as they had title to for a consideration proportionately reduced. 15 Col. 142.
4. A real estate broker is entitled to his commission, even though it is payable out of the purchase price, if the seller fails or refuses to make good title. Appellant was not responsible for the state of appellees' title. 51 Ill. 206; 25 Cal. 81; 83 Cal. 628; 42 S.W. 647; 43 S.W. 929; 20 Ore. 454; 103 Cal. 160; 57 Cal. 225; 90 Tenn. 77. The purchasers being financially responsible, the contract was enforcible, and appellant, having produced them, did all that he assumed, or was required, to do. 43 L. R. A. 604; 44 L. R. A. 593; 5 Current Law, 452, note 44-47; 3 Id. 543, n. 18; 205 Pa. 254; 5 Colo. 174.
Fulk, Fulk & Fulk, for appellees.
1. It is not error to refuse instructions asked for, where the court has already given instructions covering the same questions. 28 Ark. 8; 51 Ark. 324; 34 Ark. 649; 58 Ark. 472; 52 Ark. 180; 59 Ark. 143.
2. The commission was dependent upon the sale of the land. and there was no sale--no transfer of possession by deed, nor actual livery of seizin. The payment of the $ 400 on purchase price was not a sale. 70 Ark. 351. Moreover, appellees were to receive first, $ 8,000, net to them, and appellants commission was to consist of the "balance of purchase price, $ 1,600." Until appellees received the money due them, there was nothing due to appellant under the contract.
3. A broker is never entitled to commissions for unsuccessful efforts. The risk of failure is wholly his, and the reward comes only with his success. 83 N.Y. 378.
The compensation of a real estate agent is dependent upon his procuring a purchaser ready, willing and able to make the purchase on the terms fixed by the principal, and he must show affirmatively that he has done so before he can recover. 80 Ark. 183; 41 Mo.App. 118; 13 Bush (Ky.), 358; 20 How. 221; 21 Barb. (N. Y.), 145; 43 Id. 529; 25 Cal. 76; 21 P 98; 26 Mo.App. 289; 29 Mo.App. 421; 34 Id. 273; 36 Id. 15; 61...
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