Murphy v. Linsky
| Decision Date | 05 March 1920 |
| Citation | 94 Conn. 475,109 A. 412 |
| Court | Connecticut Supreme Court |
| Parties | MURPHY v. LINSKY. |
Appeal from Superior Court, New Haven County; John E. Keeler, Judge.
Action by John J. Murphy against John J. Linsky, to recover a broker's commission for effecting a sale of the defendant's real estate, brought to the superior court in New Haven county and tried to the jury before Keeler, J Verdict for the plaintiff for $1,538, which the trial court upon motion of the defendant, set aside as against the evidence, and from this ruling the plaintiff appealed. No error.
Ulysses G. Church, of Waterbury, for appellant.
Clayton L. Klein, of Waterbury, for appellee.
The jury were amply justified by undisputed evidence in finding, as their verdict imports that they did, that the plaintiff, a real estate broker, entered into a contract of employment, not exclusive, with the defendant whereby he was authorized to sell the property in question for $75,000 and promised a commission of 2 per cent. were he successful in affecting a sale. They were likewise justified in finding that the plaintiff, immediately following this employment, instituted efforts looking to the purchase of the property by one whom he regarded as a promising prospective purchaser. The plaintiff's testimony and that of those whom he approached in the prosecution of efforts are in irreconcilable conflict with respect to what transpired in the interviews between them; but, whatever was then said or done, the situation down to the early days of August, 1917, remained, as all who testified agreed, that the defendant continued firm in his asking price of $75,000, that no offer of purchase of any kind had been made, and that no word holding out hope of a possible future offer was ever uttered beyond a statement by one of the prospective buyer's agents, testified to by the plaintiff and denied by the agent, that, if the defendant would consider an offer of $60,000, he, the agent, would see if he could get his people to make it. At this point the plaintiff's efforts and all participation by him in negotiations looking to the consummation of a sale ceased. He so testified, and further that he was wholly ignorant of subsequent proceedings in the matter until he read in a newspaper that the property had been conveyed to the agent of the prospective purchaser last referred to. This information proved to be accurate, and subsequent inquiries disclosed that the conveyance was made on August 22, 1917, that the price received by the defendant was $70,000, and that the conveyance was taken in the name of the agent for his principal.
From this outline of the salient facts of the case, in full accord in all its essential features with the plaintiff's testimony, it is apparent that he could not establish his claim to a commission upon the ground that the sale had been brought to a successful conclusion by his own unaided efforts. Particularly is this true when the testimony reveals the coming upon the scene of another broker and his active participation in the negotiations for and in the consummation of the bargain made and executed. If the plaintiff was entitled to a judgment for his commission, it must have been for the reason that he had shown that he was, notwithstanding the presence and activity of the last-named intermediary, the procuring cause of the sale. Hoadley v. Savings Bank of Danbury, 71 Conn. 599, 608, 42 A. 667, 44 L.R.A. 321.
To entitle a real estate broker to claim from his principal a commission for the sale of the latter's real estate, he must, in the absence of an express contract to a different effect, show that he procured a purchaser ready, willing, and able to buy upon terms prescribed or accepted by its owner. Commander v. Lawler, 94 Conn. 125, 108 A. 537; Ritch v. Robertson, 93 Conn. 459, 463, 106 A. 509; Butler v. Ouwelant, 90 Conn. 434, 438, 97 A. 310.
Where two or more brokers without exclusive authority to sell play some part in a transaction of sale, each contributing something to bring about the resulting sale, each is not entitled to a commission or to share in the commission paid. Some one of them is entitled to it, and he the one who deserves to be regarded as the procuring cause of the sale by reason of his efforts having been an efficient proximate cause in its accomplishment, or, as otherwise expressed, the " predominating efficient cause" of such accomplishment. Whitcomb v. Bacon, 170 Mass. 479, 481, 49 N.E. 742, 64 Am.St.Rep. 317; Votaw v. McKeever, 76 Kan. 870, 875, 92 P. 1120.
The plaintiff appears to have succeeded in establishing that he was employed by the defendant to effect a sale of the property, that he first approached the ultimate buyer through the latter's agents, and thus brought him into the field as a possible purchaser, and that a sale to him upon terms satisfactory to the owner was in fact consummated. These are facts deserving of consideration...
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