Novakovich v. Union Trust Co.

• Citation: 117 S.W. 246,89 Ark. 412
• Parties: NOVAKOVICH v. UNION TRUST COMPANY
• Decision Date: 01 March 1909
• Court: Supreme Court of Arkansas

117 S.W. 246

89 Ark. 412

NOVAKOVICH v. UNION TRUST COMPANY

Supreme Court of Arkansas

March 1, 1909

Appeal from Pulaski Circuit Court; Robert J. Lea, Judge; affirmed.

Judgment affirmed.

Bradshaw Rhoton & Helm, for appellant.

A contract of agency may be revoked at any time before sale unless coupled with interest or given for a valuable consideration. Proposed compensation by way of percentage on the amount of proceeds derived from the sale constitutes no such interest, neither will expenditures made by the agent in the effort to make the sale come within the rule of agency coupled with interest. 1 Warvelle on Vendors, § § 218, 219; 1 Am. & Eng. Enc. of L. 1217; 11 Ore. 361; 73 Ala 372. Revocation may be effected in any manner showing the intention of the principal to withdraw his authority, either expressly or by implication. 1 Am. & Eng. Enc. of L. 1219; 141 U.S. 627.

Moore Smith & Moore, for appellee.

1. Under the contract in question the agency ran from its date until written notice to appellee of the property's withdrawal from sale. The instrument is an offer on appellant's part to employ and an acceptance by appellee of such employment evidenced by its efforts and undertaking to sell the porperty in accordance with the contract. When so accepted, it became an executed contract binding on both parties. Here are mutual promises each furnishing sufficient consideration for the other. 47 S.E. 92; Mechem on Agency, § 108.

2. The power of revocation is not to be confused with the right of revocation. While the principal may at all times have the power to revoke a contract, yet, if he exercises such power where the right does not exist to do so, he becomes liable to the agent. Mechem on Agency, § 209; Tiffany on Agency, pp. 136, 139, 448-9.

OPINION

BATTLE, J.

On the third day of June, 1907, the Union Trust Company, a corporation, brought this action against Nick Novakovich and wife to recover $ 225 as commissions on the sale of certain real estate. The action was based on the following contract:

"Little Rock, Ark., February 25, 1907.

"I have this day placed with the Union Trust Company for sale the property described on the reverse side of card of which I am the owner.

"The said Union Trust Company shall have the sole agency of sale for the above property for three months from the date hereof, and after until notified by me in writing of its withdrawal from sale. And I hereby authorize them to sell and contract with purchaser for the sale and conveyance by warranty deed of said premises, at a price of $ 7,000 and terms of payment as written on reverse side of card, or any price or terms which I may authorize them to accept other than the above; and if the said property be sold during the period above stated, no matter by whom, I agree to pay them a commission of $ 225, the usual per cent. on the gross amount of such sale."

The defendants denied indebtedness.

Plaintiff recovered judgment against the defendants for the $ 225 and interest and costs, and the defendants appealed.

Upon procuring the foregoing contract plaintiff immediately opened negotiations with Walter Nash for the sale of the real estate and continually kept them up for about three months, visiting the property two or three times with him, suggesting alterations in it which would make it a better investment, and in various ways attempting to induce Nash to purchase the property. These negotiations were carried on until the property was sold by another agent to the said Walter Nash for $ 7,000, he [the other real estate agent] taking other real estate in part payment and accounting to defendants therefor as $ 2,000; the other $ 5,000 being paid by Nash in cash. The sale was made and completed before plaintiff was notified in writing by the defendants or either of them of the withdrawal of the property from sale. Is plaintiff entitled to recover upon the contract?

Appellants contend that the contract sued upon conferred on appellee a naked power to sell, uncoupled with an interest in the property, and that it was revocable at any time they might choose to revoke...