Moore v. Irvin

• Decision Date: 08 February 1909
• Parties: MOORE v. IRVIN.
• Court: Arkansas Supreme Court

116 S.W. 662

MOORE v. IRVIN.

Supreme Court of Arkansas.

February 8, 1909.

Appeal from Circuit Court, Howard County; Jas. S. Steel, Judge.

Action by D. C. Irvin against J. H. Moore. From a judgment for plaintiff, defendant appeals. Reversed and remanded for new trial.

Appellee and appellant entered into a contract, whereby the latter, who was a real estate broker, should have the exclusive sale for the former of a certain tract of land on certain terms. Appellee was to give appellant "in consideration of his services in making a sale or transfer," sending appellee "a buyer, or being instrumental in any manner whatever in selling or transferring the property" a certain per cent. commission to be paid "out of the first money collected." No change in the price or terms of sale made by appellee should work a forfeiture of appellant's commission. Appellee entered into a contract with one Humphries for the sale of the land. Humphries paid to appellee $200 on the purchase money, and executed his note for a balance, payable at a future date. Time was of the essence of the contract of sale, and in the event of a failure to pay or perform other conditions named "strictly and literally" all the rights of the purchaser ceased. In case of default to comply with the condition as to payment, the relation of landlord and tenant was to exist from the first of January preceding to the date of the default. Upon compliance with the conditions by Humphries, appellee was to make him a warranty deed to the land. Appellee testified that, when the $200 was paid him by Humphries, appellant demanded his commission. Appellee told him that, "if he thought the other (money) was safe and all right, he could have his commission." He said it would be perfectly all right; that he had arranged to borrow the money for Mr. Humphries; that all Humphries would have to do was to sign a mortgage. Appellee says he let appellant have the $50 which he "would not have done without this representation." Appellee further testified that he "accepted this Humphries contract and signed this agreement upon defendant's [appellant's] judgment," that "his representations caused plaintiff [appellee] to believe that it was all right." The testimony of appellant tended to show that he had made a contract to sell appellee's place to one Barefield for cash; that the trade was not closed on account of the sale by appellee to Humphries; that appellee and Humphries had reached an agreement as to the terms of payment, and he appellant wrote the contract for them; that, when Humphries paid appellee the $200 and appellant received the $150 commission, his contract with appellee terminated. Appellant denied that the commission was paid him upon the understanding that the balance of the purchase money would be paid by Humphries, also denied that he had represented to appellee "that Humphries was all right," said that he knew nothing of Humphries' financial standing, and that he did not guarantee appellee that Humphries would pay for the place. There was nothing to show that the farm was not worth the money that Humphries agreed to pay for it. This suit was begun by appellee in justice court against appellant to recover the $150. Appellee, among other things, alleged that appellant sold the land to Humphries, and that appellee allowed appellant to take the sum of $150 as his commission, relying upon appellant's representation that Humphries was able to and would consummate the purchase, that Humphries had failed to do so, and that he was insolvent, and therefore appellant had not earned the commission. Appellant denied orally all the material allegations of the complaint. The testimony at the trial developed substantially the above facts.

The court at the request of appellee, in effect, instructed the jury that appellant under the contract with appellee would not be entitled to any compensation for his services in procuring a purchaser, unless there was a consummation of the contract of purchase made by such purchaser with the appellee, i. e., unless the purchase money was paid by the purchaser and the title transferred to him. The court further instructed the jury that if appellant made the representation to appellee that Humphries would perform his contract of purchase, and that appellee acted upon such representation in paying over the money in suit to appellant, in such case, if appellant failed to perform his contract, appellee should recover.

The following instructions asked by appellant were modified by inserting the words in italics.

"(2) The court instructs the jury that if they believe from the evidence that the plaintiff, Irvin, employed the defendant, Moore, to sell his farm for him at a designated price, and the defendant procured a purchaser who was willing and ready, acceptable to Irvin relying upon his own judgment, to purchase upon the terms of plaintiff, and who did enter into a written contract with plaintiff, expressing the terms of the sale, defendant, Moore, was then entitled to his commission, although the purchaser may afterwards refuse to perform his part of the contract without any fault on the part of the plaintiff, and your verdict will be for defendant.

"(3) The court instructs the jury that if they believe from the evidence that the plaintiff, Irvin, employed the defendant, Moore, to sell his farm for him, under written contract, whereby defendant's commissions were to be paid out of the first money paid by the purchaser, and the defendant did procure a purchaser who made a...