Middle Atl. Immigration Co v. Ardan

• Decision Date: 12 June 1913
• Court: Virginia Supreme Court
• Parties: MIDDLE ATLANTIC IMMIGRATION CO. v. ARDAN.

(115 Va. 148)

78 S.E. 588

MIDDLE ATLANTIC IMMIGRATION CO.

v.ARDAN.

Supreme Court of Appeals of Virginia.

June 12, 1913.

1. Brokers (§ 54^*) — Commissions — When Earned.

A broker authorized to sell a tract of land who sells it to a purchaser ready, able, and willing to complete the purchase is entitled to the agreed commissions on the sale.

[Ed. Note.—For other cases, see Brokers, Cent. Dig. §§ 75-81; Dec. Dig. § 54.*]

2. Trial (§ 200*) — Instructions — Cure bt Other Instructions.

In a broker's action for commissions, an instruction that if defendant authorized plaintiff to sell a tract of land, and if sold to pay plaintiff a specified commission, and if plaintiff sold the land to C., and C. was ready, able, and willing to complete the purchase, to find for plaintiff, was sufficiently covered by an instruction that, before the jury could find for plaintiff, they must believe that C. was ready, willing, and able in good faith to comply with his contract, and that in determining his willingness, readiness, and ability they might consider all the facts proven in the case, and hence its refusal was not prejudicial.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]

3. Brokers (§ 88*)—Actions for Commissions —Instructions.

In a broker's action for commissions, where there was evidence that a purchaser was found who professed himself ready, able, and willing to complete the purchase, but who subsequently failed to do so, and that the owner in entering into a contract of sale with the purchaser relied on the broker's statements as to the purchaser's readiness, ability, and willingness, it was proper to refuse an instruction to find for plaintiff if the failure to carry out the contract was due either to the fault of the owner or of the purchaser, and not to the broker's fault; since if the failure was due wholly to the fault of the purchaser, and there was no default or misconduct on the part of the owner, the broker was not entitled to recover.

[Ed. Note.—For other cases, see Brokers, Cent Dig. §§ 121, 123-130; Dec. Dig. § 88.*]

4. Brokers (§ 88*)—Actions for Commissions —Instructions.

In a broker's action for commissions, where there was evidence tending to show that a purchaser procured by the broker, and who professed himself ready, able, and willing to complete the purchase, was not financially able to respond in damages for his failure to carry out the contract, and that in entering into the contract the owner relied upon the statements of the broker as to the purchaser's readiness, ability, and willingness, instructions that if a valid, binding, and enforceable contract was made between the purchaser and the owner through the broker, and if the purchaser was financially able to carry out the contract, the broker fully performed its duty, and was entitled to its commissions, if the failure to carry out the contract was due to no fault of its, that if the purchaser was financially able to perform the contract, andrefused to do so, the owner could have brought suit against him and recovered the amount that the purchaser agreed to pay, that the broker could not have instituted a suit nor done anything further to enforce completion of the sale, that it was the duty of the owner to force the purchaser to comply with the contract, and that unless the broker consented to the owner's abandoning the contract to find for plaintiff, were properly refused.

[Ed. Note.—For other cases, see Brokers, Cent Dig. §§ 121, 123-130; Dec. Dig. § 88.^2-*]

5. Brokers (§ 88*)—Actions fob Commissions —Instructions.

In a broker's action for commissions on a sale of land which the purchaser procured failed to complete after entering into a contract, an instruction that if the owner after investigation as to whether a suit against the purchaser would be available to compel him to comply with the contract was advised by his counsel that a suit would be expensive and useless, and would avail him nothing, he was not bound to bring such suit, was improper, since it left it entirely to the discretion of the owner's counsel to determine whether or not it was his client's duty to sue, whereas an investigation should have been made as to the facts bearing upon the advisability of suing and all the facts obtained submitted to the jury for their determination as to whether a suit would have been unavailing.

[Ed. Note.—For other cases, see Brokers, Cent. Dig. §§ 121, 123-130; Dec. Dig. § 88.*]

Error to Circuit Court, Cumberland County.

Action by the Middle Atlantic Immigration Company against John J. Ardan. Judgment for defendant, and plaintiff brings error. Reversed and remanded.

The following instructions were requested by plaintiff:

"(1) The court instructs the jury that if they believe from the evidence in this case that the defendant authorized the plaintiff to sell the tract of land mentioned in the declaration at $10,000, and if so sold by plaintiff to pay plaintiff a commission of $100, and the plaintiff sold said property to M. F. Casto, of Deerhead, Kan., and said Casto was ready, able, and willing to complete said purchase, then they must find for the plaintiff.

"(2) The court instructs the jury that if they believe from the evidence in this case that the defendant personally entered into a valid, binding, and enforceable written contract with M. F. Casto for the sale to said Casto of the defendant's property at the price of $10,000, and that at the time of entering into such contract said Casto was able to comply with the terms of same, and that the failure to carry out said contract was due either to the fault of the defendant or of said Casto, but was in no wise due to any fault of plaintiff, and said failure was without the consent and contrary to the wishes of said plaintiff, then they must find for the plaintiff to the extent of his commissions.

"(3) The court instructs the jury that if they believe from the evidence that a valid, binding, and enforceable contract was made between said Casto and the defendant through the plaintiff as his agent, and that said Casto was financially able to carry out his part of said contract, the plaintiff fully performed its duty towards the defendant, and, having fully performed its duty, it is entitled to its commissions, provided the failure to carry out said contract was due to no fault of the plaintiff.

"(4) The court instructs the jury that if Casto was financially able to perform his said contract and refused to do so, and the defendant's title to the property was good, then the defendant could have brought suit against him and have recovered the amount that Casto agreed to pay for said property under his contract with the defendant; that the plaintiff in this case could not have instituted said suit, nor have done anything further to enforce the completing of said sale; and that it was the duty of the defendant to force said Casto to comply with said contract, and, unless they shall believe from the evidence that the plaintiff consented to the defendant's abandoning said contract, they must find for the plaintiff."

But the court refused to give the said instructions or any of them to the jury, and gave the following instructions:

"(1) If the jury believe from the evidence in this case that the defendant after the investigation as to whether a suit against Casto would be available to compel him to comply with his contract and was advised by his counsel that a suit would be expensive and useless and would avail him nothing, then he was not bound to bring suit against Casto, as the law does not compel a man to do a vain and useless thing.

"(2) The court instructs the jury that before they can find for the plaintiff they must believe that Casto was ready, willing, and able in good faith to comply with his contract, and that in determining his willingness, readiness, and ability to do so they may consider all the facts proven in this case.

"(3) The court instructs the jury that, before they can find for the plaintiff, they must believe from the evidence that the failure of Casto to complete his purchase was due either to a defect in the title or some default on the part of the defendant.

"(4) The court instructs the jury that if they believe from the evidence in this case that the defendant was ready, willing, and able to comply with the contract on his part, and did all that was necessary to do this, but that Casto arbitrarily and without good cause refused to accept the deed tendered him by the defendant, they must find for the defendant.

"(5) The jury are to determine from all the evidence in this case whether or not the plaintiffs have made a sale of the defendant's farm as under their contract they were bound to do, and the jury are the judges ofthe weight of the evidence and the credibility of the witnesses."

Gregory & Boulware, and Meredith & Cocke, all of Richmond, for plaintiff in error.

A. B. Percy, of Lynchburg, and Wm. Justis, Jr., for defendant in error.

KEITH, P. The Middle Atlantic Immigration Company brought its action in assumpsit against Ardan to recover the sum of $400 alleged to be due it as commissions for negotiating a sale of certain real estate owned by the defendant. The defendant pleaded nonassumpsit, and a jury was impaneled, which found for the defendant, and from the judgment rendered by the court upon that verdict the Middle Atlantic Immigration Company obtained a writ of error.

On the part of the plaintiff there was evidence which proved or tended to prove that Ardan had listed with the Immigration Company a certain parcel of land owned by him in the county of Cumberland, and was to pay the plaintiff in error the sum of $500 upon the agreed price, if a purchaser was found by it. Subsequently the contract was so changed by agreement between the parties that the purchase price of the land was to be $10,000, and the plaintiff in error, if it negotiated a sale, was to receive $400 in commissions. The plaintiff in error produced a man from...