Massie v. Firmstone

Citation114 S.E. 652
CourtSupreme Court of Virginia
Decision Date16 November 1922

Error to Circuit Court, Alleghany County.

Proceeding by notice of motion for judgment by E. R. Massie against H. Firmstone. Judgment for defendant, and plaintiff brings error. Affirmed.

Geo. A. Revercomb, of Covington, and W. Chapman Revercomb, of Charleston, W. Va., for plaintiff in error.

J. M. Perry, of Staunton, for defendant in error.

KELLY, P. This is a proceeding by notice of motion for judgment instituted by E. R. Massie against H. Firmstone, to recover compensation alleged to be due to Massie for procuring a purchaser for certain real estate owned by Firmstone. There was a verdict and judgment below in favor of the defendant, and the plaintiff assigns error.

There is some apparent conflict in the oral testimony, but upon a careful analysis, and in view of the correspondence between the parties, the facts material to the merits of the case are not open to serious controversy.

The judgment for the defendant would have been right if it had been rendered upon a demurrer to the evidence.

Massie was a real estate agent at Clifton Forge. Firmstone owned a tract of land near by containing about 20, 000 acres, upon which he resided and kept his office. This land was for sale, but was not listed with Massie or any other agent. He permitted Massie to bring prospective purchasers to see the property, but was careful always to retain the privilege of selling it himself.

On October 30, 1919, Massie took Milton Dashiell, a Baltimore lawyer and real estate speculator, with whom he had a very limited acquaintance, to see the property. They made the trip by automobile, and upon arriving at the Firmstone home Massie left Dashiell in the machine while he went in and had a private interview with Firmstone, telling him that Dashiell was outside, was a prospective purchaser, and asking if he might introduce him. Receiving an affirmative answer, he then introduced Dashiell to Firmstone, and this was followed by a long interview between Dashiell and Firmstone, as a result of which they reached a verbal agreement as to the price and terms of sale. Whether this verbal agreement went far enough to constitute both an offer and an acceptance is a matter as to which there is a conflict of testimony between Firmstone and Dashiell. Dashiell says he considered the property sold to him; that he definitely agreed to take and pay for it; and that he was to have a reasonable time, anywhere from two weeks to two months according to his convenience, within which to examine the title and make payment. Massie's oral testimony corroborates Dashiell in this respect. Firmstone testified in substance that he did not so understand the agreement, and did not consider that he had sold the property to Dashiell, or that he had surrendered his right to withdraw the offer at any time before acceptance.

In about 10 or 12 days after this interview, Firmstone telephoned and wrote to Massie that another purchaser had turned up, and that he would not deal further with Dashiell.

Since the trial of this case Firmstone has died. His testimony was refreshingly frank, and evinced a willingness to swear to his own hurt if that course was necessary to a full and unreserved disclosure of all the material facts within his knowledge. His version and interpretation of the understanding, in so far as it conflicts with the version thereof given by Dashiell, is strongly, if not conclusively, corroborated by certain undisputed facts and circumstances in the case. Among these may be mentioned the following: Dashiell had never heard of the property before and had made only the briefest and most superficial examination of it. He was entirely dependent for his information as to the value of the property upon information given him that day by Firmstone, whom he had never theretofore seen. He did not have money of his own with which to buy the property, and he had no authority to buy for any one else. He was a lawyer and knew that a binding contract for the sale of real estate had to be in writing, and yet, if his testimony is true, he undertook to absolutely close that day a contract by word of mouth for $100,000 worth of property with an utter stranger without obtaining any written evidence of the alleged sale. He explains this by saying that he offered to pay something in cash and take a written memorandum, and that Firmstone said that course was unnecessary between such gentlemen as they were; but notwithstanding this, he thought it necessary to obtain, and did obtain, permission from Firmstone for certain timbermen, by whom he said he wished to have an inspection made, to go upon the property.

But, conceding that Dashiell's testimony as a whole must be regarded as in conflict with Firmstone's, that conflict, in our view of the case, is not material to the issue here.

The plaintiff is suing for compensation for securing a purchaser. His notice of motion by which this proceeding was instituted, addressed to Firmstone, says:

"I * * * will * * * move said court for a judgment against you for the sum of $5,000.00, which amount you owe me as, compensation for securing for you at your request a purchaser for a tract of land which you informed me you desired to sell."

The evidence does not make out the case set up by the plaintiff, or any other case upon which he is entitled to recover. His own testimony shows that he was not requested, but asked permission, to furnish a purchaser; that his compensation depended upon a consummated sale to such purchaser; that Firmstone was careful to reserve the right to sell the property to others if he chose; and that no sale was in fact made to the proposed purchaser whom he introduced.

He seeks to recover upon the authority of Low Moor Iron Co. v. Jackson, 117 Va. 76, 84 S. E. 100. But that was a case of the very common type in which the real estate broker was to be paid a commission if he furnished a purchaser before some one else did, and in which the compensation did not depend upon a completed sale. Under the facts of that case, this court said:

"Where, however, as in this case, the authority given to the broker by the owner of the real estate does not require a contract in writing with the purchaser, the broker is entitled to his commissions when he produces a purchaser able, ready, and willing to buy, although no written contract for the sale is entered into between the owner and the purchaser."

The language quoted above undoubtedly states the general rule applicable to a caseof that type. But the opinion in that case recognized the rule which in our opinion is applicable to the case at bar as follows: Where a broker is not merely authorized to find a purchaser, but in order to comply with his undertaking the property must be actually sold, "the broker does not become entitled to his commission by merely producing the customer who is ready, willing and able to purchase unless a sale or contract to sell is actually entered into by the owner of the land"; and for this latter proposition the court cites Caldwell v. Tannehill, 117 Va. 11, 84 S. E. 6; 2 Mechem on Agency, § 2427; 2 Skyles & Clark on Agency, § 1770.

The owner of real estate must take notice of the general rules of law applicable to the business of real estate brokerage, and if Firmstone had requested or authorized Massie to find a purchaser for the property at a stated price without further conditions, then, assuming that Dashiell was able, ready, and willing to buy, the judgment complained of in this case would be wrong. But a real estate owner has a right to stipulate that he will pay no commission until a sale is made, and in the meantime to reserve to himself complete control and power of alienation over the property. This is just what Firmstone did. That Massie voluntarily assumed the risk of these conditions clearly appears from his own testimony. The only agreement he claimed to have was stated by him to the jury as follows:

"The only thing I claim is that Mr. Firmstone told me that any time I brought a purchaser and a sale should result he would pay me a commission. I did not consider that I had the property listed in my hands."

Although Massie did undertake to testify that Firmstone and Dashiell perfected a verbal sale on October 30th, his testimony as a whole, taken with his correspondence, estops him from any such contention. He knew that there had been no contract in writing; that Firmstone had said to Dashiell that he would not give an option on the property, but would only deliver a deed when the money was paid; and that Firmstone had said that he "did not think there would be any interference of any kind in the matter, " meaning, as Massie understood, to refer to the possibility of other purchasers coming in. He further knew that Dashiell had asked the privilege of sending timber experts on the property, a wholly unnecessary request if the property had already been purchased by Dashiell. All these things appear in Massle's testimony; hut they are even more convincingly established by his letters to Firmstone written subsequent to the interview of October 30th. He wrote Firmstone on October 31st as follows:

"My trip to see you with Mr. Dashiell yesterday was, of course, entirely voluntary on my part. I did not know that you would even price your place, but since you have, and he has given me every assurance that he will take the place, I wish to get my mind easy as to my end of the transaction. I take it for granted that if sale is made,...

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