Moore v. Turner

• Decision Date: 23 June 1952
• Docket Number: No. 10405,10405
• Citation: 32 A.L.R.2d 713,71 S.E.2d 342,137 W.Va. 299
• Parties: , 32 A.L.R.2d 713 MOORE, v. TURNER.
• Court: West Virginia Supreme Court

Page 342

71 S.E.2d 342

137 W.Va. 299, 32 A.L.R.2d 713

MOORE, v. TURNER.

No. 10405.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 22, 1952.

Decided June 17, 1952.

Concurring Opinion June 23, 1952.

Syllabus by the Court.

1. The general rule that a broker who has done all that is required of him by the contract between him and his principal, in the absence of express provisions to the contrary, is entitled to the compensation provided for in the contract, does not apply when it appears that the broker has not acted, in the transaction for which he is employed, with the utmost good faith towards his principal.

2. A broker must act with the utmost good faith towards his principal and is under a legal obligation to disclose to his principal all facts within his knowledge which are or may be material to the transaction in which he is employed or which might influence the action of his principal in relation to such transaction.

3. The faithful discharge by a broker of his duty to act with the utmost good faith towards his principal is a condition precedent to any recovery upon his part for his services; and a broker is not entitled to compensation if he fails to disclose to his principal any personal knowledge which he possesses of facts which are or may be material to the matter in which he is employed or which might influence the action of his principal in relation to such matter.

Ezra E. Hamstead, Morgantown, for plaintiff in error.

Robert T. Donley, Morgantown, for defendant in error.

HAYMOND, Judge.

This action of assumpsit was instituted on August 7, 1950, in the Circuit Court of Monongalia County, West Virginia, by the plaintiff, Myrtle J. Moore, to recover from the defendant, Edgar D. Turner, compensation which the plaintiff claims he owes her, under a verbal contract entered into between them, for services rendered by her in connection with the sale in April, 1950, by the defendant and his associate owners, to the Pittsburgh Consolidation Coal Company, of a large tract of Pittsburgh coal and certain mining rights, containing 1,112.26245 acres, known as the Turner Tract of Pittsburgh coal situated in Cass District in that county. To the declaration, which contains two common counts and a special count, the defendant filed his plea of the general issue. Upon the trial the jury, on December 14, 1950, returned a verdict in favor of the plaintiff for $33,367.85, being ten per cent of the purchase price of $333,678.74, which on motion of the defendant the circuit court set aside by order entered February 16, 1951. To the order setting aside the verdict and granting the defendant a new trial this Court awarded this writ of error upon the petition of the plaintiff.

The plaintiff, a married woman, residing in Monongalia County, has been a licensed real estate broker since the year 1948, and for several years previously had been well acquainted with coal lands in that county, including numerous parcels of Pittsburgh coal which were variously included in three large adjacent tracts known as the Turner Tract, the Brand Tracts, and the Hatfield Tract. These large tracts together contained approximately 4500 or 5000 acres, and were, at a time several years before the inception of this controversy, considered by the various owners as comprising a unit or an entire block of coal. There were two separate parcels comprising the Brand Tracts, one of which, containing 175.4339 acres, was owned principally by Charles H. Brand, the father of the plaintiff, and the other of which, the acreage not being shown, was owned by the heirs of Elmer G. Brand. The plaintiff owned a small interest in a portion of the surface of, or the Pittsburgh coal in, the tract principally owned by her father, and her ownership of this interest rendered it necessary for her and her husband to join in a deed, dated February 8, 1950, and acknowledged by them on March 8, 1950, which conveyed that coal to the Pittsburgh Consolidation Coal Company.

The defendant, a resident of Washington, D. C., and also a licensed real estate dealer, had engaged in that business in that city for many years and was well acquainted with coal lands in Monongalia County.

For some years prior to the occurrence of the transactions which resulted in this litigation, the plaintiff made a number of unsuccessful attempts to negotiate a sale of these different tracts. During that period of time and perhaps in 1944 or in 1946, the evidence as to the time not being clear, and again in 1949, there was an arrangement or an agreement among the plaintiff, who was interested in a sale of the Brand Tracts, the defendant, as the representative of the Turner Tract, and John L. Hatfield, as the representative of the Hatfield Tract, which, in substance, was that these tracts should be sold as a unit and at the same price per acre and not separately except by mutual consent. It appears that for some time prior to March 18, 1950, the plaintiff considered this arrangement terminated but that the defendant regarded it, at least in some respects, as being still in force when the contract between him and the purchaser of the coal owned by him and his associates became effective on April 18, 1950.

As already indicated the plaintiff, for some time prior to March 18, 1950, had made repeated efforts to induce the Pittsburgh Consolidation Coal Company, which owned a large acreage of Pittsburgh coal near or adjacent to the Turner Tract and the Brand Tracts, to purchase the Turner Tract. These negotiations, however, had failed of consummation because of the inability of the plaintiff, in behalf of the defendant, and the company to agree upon the price per acre for the coal in the Turner Tract. The highest price that the company had previously indicated a willingness to pay was $250.00 per acre for the Pittsburgh coal in the Turner Tract and the defendant had declined to sell it at that figure.

On March 18, 1950, however, the plaintiff, being at Pursglove, Monongalia County, where an office of the Pittsburgh Consolidation Coal Company was located, and still being desirous of negotiating a sale of the coal, in a further effort to do so, called at the office of the company and discussed the matter with one of its vice presidents. In the conversation which occurred at that time, he mentioned the price of the coal as $250.00 per acre, but told the plaintiff that if the defendant would agree in writing to accept $300.00 per acre for the coal, he would present such offer to the company at a meeting of its board of directors to be held in April of that year. He emphasized, however, that the price then was $250.00 per acre, and made it clear that he could not assure the plaintiff that the company would pay a price of $300.00 per acre. At that stage in their conversation the plaintiff, with knowledge and consent of the vice president, from his office, called the defendant by telephone at Washington. According to her testimony she asked the defendant, whose voice she recognized, if he still wanted her to try to sell the coal and if he would pay her a commission of ten per cent if she should find a buyer of the coal at a price of $300.00 per acre and, after he answered those questions in the affirmative, she told him that the prospective buyer was the Pittsburgh Consolidation Coal Company and that it would be necessary for the defendant to submit his offer in written form to be presented to the board of directors about the first of April.

The plaintiff further testified that the defendant said that he wanted that information from some official of the company and that she replied that she would have the vice president confirm her statement by telephone; that at her request the vice president, using an extension telephone, then joined in the telephone conversation which to that point had occurred between the plaintiff and the defendant; that she heard the vice president tell the defendant that he had no authority to pay $300.00 per acre; that the price was $250.00 per acre but that he had told the plaintiff that if she could get a written statement from the defendant that he would agree to accept $300.00 an acre for the coal he would present it to the board of directors; that the defendant told the vice president that he would submit such a statement; that the defendant asked the vice president if the transaction included the Brand coal; that the vice president replied that it did not include that coal; that the vice president told the defendant that he had heard him and the plaintiff discuss a commission of ten per cent, that the defendant should understand that the company would not pay the plaintiff any commission, and that the defendant would have to pay his own brokerage fee; that the defendant stated that he would be glad to pay the plaintiff ten per cent commission if the offer was accepted; that the plaintiff then asked and urged the defendant to make his written offer immediately; and that he replied that he would do so as quickly as he could.

The testimony of the vice president, who was produced as a witness for the plaintiff, corroborated the statements of the plaintiff which he had heard in the telephone conversation between the plaintiff and the defendant. In his testimony the defendant did not deny the foregoing testimony of the plaintiff except that part of it which related to the payment of commission. As to that phase of the telephone conversation he testified that he did not recall that anything was said at that time about any commission; that it had been distinctly understood between him and the plaintiff that she should get one third of a commission of ten per cent; and that he he had never told her that he would be glad to pay her a commission of ten per cent.

After the foregoing telephone conversation on March 18, 1950, the defendant submitted a written offer to sell the coal in the Turner Tract, consisting of 1,112.26245 acres, to the Pittsburgh Consolidation...