Lockett v. Drake, Civil 3388

• Decision Date: 09 April 1934
• Docket Number: Civil 3388
• Citation: 31 P.2d 499,43 Ariz. 357
• Parties: FRANCES HUMPHREYS LOCKETT, Formerly FRANCES HUMPHREYS, Appellant, v. L. W. DRAKE and NATIONAL UNION INDEMNITY COMPANY, a Corporation, Appellees
• Court: Arizona Supreme Court

31 P.2d 499

43 Ariz. 357

FRANCES HUMPHREYS LOCKETT, Formerly FRANCES HUMPHREYS, Appellant, v. L. W. DRAKE and NATIONAL UNION INDEMNITY COMPANY, a Corporation, Appellees

Civil No. 3388

Supreme Court of Arizona

April 9, 1934

APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge. Judgment affirmed.

Mr Herman Lewkowitz and Mr. J. B. Zaversack, for Appellant.

Mr. C H. Young and Mr. Paul J. Feehan, for Appellees.

OPINION

LOCKWOOD, J.

Frances Humphreys Lockett, hereinafter called plaintiff, brought suit against L. W. Drake and National Union Indemnity Company, a corporation, to recover from Drake a certain sum paid him as commission upon a realty transaction in which he was the broker. The case was tried to the court, and, judgment being rendered in favor of defendants, this appeal was taken. The sole question is whether on the facts, which are not seriously in dispute, the court was correct in its judgment as a matter of law. These facts may be briefly stated as follows:

In 1931 plaintiff was the owner of certain real estate located in North Evergreen addition to Phoenix, upon which was erected an apartment house. At the same time one G. F. Barnes owned real estate in the Linville addition to the same city. Drake was a licensed real estate broker, the National Union Indemnity Company being the surety on his statutory bond, and Lockett and Barnes had separately asked him to secure a customer for a sale or exchange of their respective properties. He brought the two together, and they entered into a written agreement for an exchange of the real estate above described. This agreement consisted of a detailed proposition of exchange made by Barnes and signed by him and an acceptance by plaintiff in the following language:

"This agreement witnesseth: That Frances Humphreys of Phoenix owner of the (second piece) of property described within hereby accept the proposition of exchange made therein, and upon the terms therein stated, and agree to furnish a Certificate of Title or Guaranteed Title Policy within 30 days showing the title to said property vested in Frances Humphreys and then to furnish a good and sufficient Deed conveying title to said property to G. F. Barnes or assigns or his representatives.

"And I further agree to pay Shedd & Drake the sum of 5% commission on the sale or exchange price above stated on the (second piece) of property described."

The Phoenix Title & Trust Company was then made by both parties an escrow-holder, with instructions as to how the necessary details to complete the exchange were to be carried out. After the above agreement was signed, but before title was passed, Drake asked plaintiff to pay him the commission due him by the terms of her agreement, and she did pay him $1,250 on account.

Thereafter Barnes, coming to the conclusion that he would be unable to finance the exchange properly, refused to proceed in accordance with its terms. Drake advised plaintiff that she had the right to compel Barnes to live up to the agreement by a suit for specific performance, but she declined to take that course, for the reason, as she said, "she did not want to buy a law suit." Thereafter, Barnes being in default on the agreement, she notified the escrow, and brought this suit to recover from Drake the commission she had already paid him.

She bases her claim for recovery on two propositions: First, that the commission was not due until after the exchange of the properties had been completed, and title and possession both had passed; and, second, that Drake had promised to repay to her the amount of the commission which he had received if the exchange was not fully consummated. It is the almost universally-accepted rule of law that, in the absence of a specific contract to the contrary, when a real estate broker has brought together the parties to a sale or exchange of real estate, and they have agreed fully on the terms and entered into a binding contract for such sale or exchange, his duties are at an end and his commission is fully earned, and...