Linton v. Johnson et als.
| Decision Date | 29 January 1918 |
| Citation | 81 W.Va. 569 |
| Court | West Virginia Supreme Court |
| Parties | Linton v. Johnson et als. |
The contract of a real estate agent or broker doing business in this state for compensation for making sale of land is not void because he had not at the time of the contract procured a state license as such, and the absence of such license constitutes no defense to an action by him for commissions earned under such contract. (p. 571).
Where such real estate agent or broker has procured a purchaser and fully complied with the terms and conditions of his contract, and the parties, the vendors and the purchaser have entered into a valid and binding contract of sale and purchase, such agent or broker, unless his contract otherwise provides, can not be deprived of his right to the compensation stipulated in his contract, because of the default of the purchaser to afterwards comply with some of the terms and provisions of his contract, (p. 572).
Error to Circuit Court, Monroe County. Action by T. J. Linton against F. P. Johnson and others. Judgment for plaintiff, and defendants bring error.
Affirmed.
Tlios. N. Read, for plaintiffs in error. John W. Arbuckle, for defendant in error.
In an action by plaintiff, a real estate agent or broker, against defendants, for commissions alleged to be due him for selling or aiding in making sale of a farm belonging to them, all instructions to the jury proposed by defendants were rejected, and the jury, on a peremptory instruction by the court to do so, found for plaintiff the sum of $618.75, with interest from April 18, 1914, and the judgment complained of was in accordance with the verdict.
The contract between the parties which was in writing, dated March 9, 1914, recited that defendants, parties of the first part, had that day placed said land in the hands of plaintiff for sale as agent, and that in consideration of his listing the same for sale and of snch efforts as he should make to secure a purchaser thereof and of advertising the same they covenanted and agreed to pay him or his assigns five per cent, commission on the gross amount of said sale, payable out of the cash payment. And another provision of said agreement was, that should the first parties themselves make sale of said property, or through another agent or agents, then plaintiff should be entitled to no commissions; but that should the plaintiff introduce a purchaser, or influence, or aid, in making such sale, then defendants thereby agreed to pay him the commissions as therein provided, And under the heading "Description of Property", including number of acres, number of acres under cultivation, kind of house, barns, how fenced, water, etc., is the following: Terms, "half cash and balance to suit first parties."
Besides the common counts in assumpsit, the declaration also contains a special count on the contract. We think the declaration good and that the demurrer thereto was properly overruled.
The material facts are not controverted, indeed, for the most part, they are in writing. It is shown that pursuant to the contract plaintiff advertised the land for sale, and that later, on March 28, 1914, at Ronceverte, Greenbrier County, he produced to defendants and proposed as a purchaser of said land one Nelson White; that on that day they then and there entered into a contract in writing with him, under seal, the first parties being represented by M. A. Johnson and F. P. Johnson, two of the owners of the land, who signed the contract, which all parties thereafter ratified, and which was also signed and sealed by White, wherein it was stipulated that defendants had that day sold to White the tract of 275 acres of land in Wolf Creek District in Monroe County, known as the "widow Johnson farm" for the sum of $12,375.00, upon the following terms, namely, $1,375.00, in cash to be paid on or about April 15, 1914, at the town of Alderson, and where as the contract recites it was understood that all the parties of the first part were to meet and sign a contract in the nature of a title bond, and when said White was at the same time to execute to the parties of the first part his negotiable note for the sum of $5,000.00, payable to the order of A. E. Johnson at the First National Bank of Alderson, to be due and payable November 15, 1914, with interest at three per cent., and for the residue of the purchase money he was to also execute to the first parties his two negotiable notes, one for $4,000.00, due November 1, 1915, with interest, and the other for $2,000.00, due November 1, 1916, with interest; and among other provisions of the contract, the eighth paragraph was as follows: "Both parties to this contract bind themselves in the penalty of $1,000.00, payable to each other for the faithful performance of various terms of this contract."
Defendants not denying the making of this contract, nevertheless rested their defense on two grounds: First, that plaintiff was not a licensed real estate broker; second, that White had not fully complied with the terms of the contract, in the particulars, (a) that he had failed to make or provide for the cash payment of $1,375.00; and (b) had failed to secure the endorsement of A. E.. Johnson on the note for $5,000.00, on or at any time after April 15, 1914, when by the provision of the contract the parties had...
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