Marlatt v. Elliott

• Decision Date: 11 June 1904
• Docket Number: 13,666
• Citation: 77 P. 104,69 Kan. 477
• Parties: A. N. MARLATT v. F. B. ELLIOTT
• Court: Kansas Supreme Court

77 P. 104

69 Kan. 477

A. N. MARLATT v. F. B. ELLIOTT

No. 13,666

Supreme Court of Kansas

June 11, 1904

Decided January, 1904.

Error from Riley district court; SAM. KIMBLE, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. AGENCY -- Commission on Sale of Real Estate. It is sufficient to entitle a real-estate agent to recover his commission for the sale of land that he, under a contract with the owner thereof, has been the procuring cause of such sale. He need not have conducted it to a final and successful conclusion.

2. AGENCY -- Particular Condition under Which an Owner is Liable for Commission. If a real-estate agent, under a contract with the owner, call the attention of a prospective buyer to the land of such owner, and thereafter, moved by the efforts of such agent, the proposing buyer and the owner consummate the purchase and sale of such real estate, the agent is entitled to his commission, even though the purchaser, at the time the agent solicited him to buy, was not ready, willing and able to purchase.

Robert J. Brock, and Alvin R. Springer, for plaintiff in error.

John E Hessin, and John Clarke Hessin, for defendant in error.

CUNNINGHAM J. All the Justices concurring.

OPINION

CUNNINGHAM, J.:

F. B. Elliot recovered judgment against A. N Marlatt in the sum of $ 240 for services rendered as a real-estate agent in selling a farm belonging to Marlatt to J. E. Conroy, the recovery being two per cent. of $ 12,000, the amount for which the land was sold. The theory of the plaintiff upon which he based his right of recovery was that he had brought to the attention of the purchaser the land of the defendant, and that, although subsequently the defendant had himself consummated the sale, still his services had been the procuring cause of the sale, and, therefore, he was entitled to his commission. The theory of the defense, as expressed in the answer, was that the plaintiff "had never found and made known to the defendant that he had a purchaser who was ready and willing and able to purchase said lands."

There was but little variance between the parties as to the facts of the case, which, stated as briefly as possible, are these: Marlatt, who was a non-resident of the state, desiring to dispose of a half-section of valuable land, placed the same with Elliott for that purpose, instructing him to sell at forty dollars per acre, upon certain terms as to deferred payments, and agreeing to give him two per cent. of the price for which the land should be sold as his commission. This was about the 1st of June, 1901. Elliott listed the land upon his books, advertised it for sale, and called the attention of several parties to the matter. Learning that Mr. Conroy wished to purchase land of that quality in that neighborhood, he gave him the price and terms at which this could be obtained, and solicited him to buy. He offered to take him out to look at the land, but Conroy said that, as he had a relative living in the neighborhood, he would go and look at it some time when he was out there. At different times up to August or September Elliott spoke to Conroy about the purchase of the land, and Conroy at one time made an offer of $ 10,000 in cash for it. This offer was submitted to Marlatt and by him rejected. Conroy told Elliott that he would not purchase until he had sold some land which he owned in an adjoining county. Elliott at one time communicated to Marlatt the fact that he was seeking to sell the land to Conroy. About the 1st of December, the same year, Conroy, having become ready and desiring to purchase, opened up negotiations with Marlatt through an agent of his own, and these negotiations resulted in the sale by Marlatt to Conroy of the farm at the price of $ 12,000, being a reduction of $ 800 upon the price at which it was listed with Elliott.

The jury returned a general verdict in favor of Elliott, and also found in answer to special questions that, while plaintiff had not participated in the consummation of the sale, he had first brought the land to Conroy's attention, and the representations made by plaintiff had been the moving cause of the sale. This specific question was asked the jury and answered:

"Did the plaintiff, under the contract sued on, bring to the defendant a purchaser who was ready, willing and able to purchase the land of the defendant in accordance with the terms under which plaintiff was authorized to make a sale? Ans. The plaintiff did bring the defendant a purchaser, but purchaser was not ready or willing to pay the price asked for in contract, as shown by subsequent negotiations."

In brief, the claim of the plaintiff was that he was entitled to recover if, after having called the attention of the purchaser to the land, the purchaser and the defendant thereafter, without the plaintiff's interference, had consummated the sale, even though it had been closed upon different terms and at a different price from those given to the plaintiff. The defendant, however, claimed that unless the plaintiff had procured a purchaser who was ready, willing and able to buy at the price and upon the terms given by the defendant, the plaintiff was not...