Odem Realty Co. v. Dyer

• Decision Date: 19 January 1932
• Citation: 242 Ky. 58,45 S.W.2d 838
• Parties: ODEM REALTY CO. et al. v. DYER.
• Court: Kentucky Court of Appeals

45 S.W.2d 838

242 Ky. 58

ODEM REALTY CO. et al. v. DYER.

Court of Appeals of Kentucky

January 19, 1932

Appeal from Circuit Court, Hardin County.

Action by the Odem Realty Company and another against J. B. Dyer. From a judgment dismissing the petition, plaintiffs appeal.

Affirmed.

Mark Beauchamp, of Louisville, and J. E. Wise, of Elizabethtown for appellants.

Faurest & Faurest, of Elizabethtown, for appellee.

WILLIS J.

This was an action by real estate brokers for the recovery of commissions. It was dismissed on demurrer to the petition and the plaintiffs have prosecuted an appeal. The defendant J. B. Dyer, owned a business and stock of merchandise at Senora in Hardin county, Ky. The brokers negotiated a contract between Dyer as seller and J. H. Pile and wife as buyers, by the terms of which Dyer agreed to sell his stock of merchandise, fixtures, and business to the purchasers for $35,000, payable as follows: $12,400 to be paid out of the receipts from the sale of merchandise under certain fixed conditions, and the balance of $22,600 to be paid by the conveyance of certain incumbered real estate designated in the contract. The agreement further provided: "It is agreed that the said J. B. Dyer shall pay one thousand dollars agents' commission for making this sale, to be paid out of the money he collects from the said J. H. Pile and the said Pile is to pay the amount he has agreed upon with the agent. The said Pile is to pay agents' commission at the same pro rate as said Dyer." The petition alleged that, when the contract was reduced to writing and signed by defendant and the purchasers, it became a binding contract between the parties, and that the plaintiffs were then entitled to their commission of $1,000 from defendant herein, and to the sum of $1,659 from J. H. Pile.

The alleged breach of the contract on the part of Dyer was stated as follows: Notwithstanding the fact that the defendant had made the contract to sell his stock of merchandise, fixtures, and business to J. H. Pile, he refused to comply with the contract and to convey his property in accordance therewith, although J. H. Pile was ready at all times to comply with the contract and to convey his property in accordance therewith. It was further alleged that, by reason of the refusal of Dyer to comply with the contract, the plaintiffs were unable to collect their commission from Pile, and hence plaintiffs asserted a right to collect from the defendant Dyer the entire commissions due from both parties. It will be observed that the action is based upon the written contract by the terms of which the defendant agreed to pay the sum of $1,000 out of the money collected by him from J. H. Pile. The obligation of Pile to pay a commission to the plaintiffs was not so conditioned, but was absolute.

The argument for the appellants proceeds upon the theory that, when the brokers negotiated a valid contract which was signed and accepted by both parties, they were entitled to the commission. The general rule is well established that, if the contract of employment simply requires the broker to find a customer who is able, ready, and willing to enter into a transaction on the terms prescribed by the principal, the broker is entitled to his commission whether or not the principal completes the transaction. Randle v. Bloomfield, 146 Ky. 421, 142 S.W. 677; Fowler v. Thomson, 193 Ky. 593, 236 S.W. 1047; Kock v. Emmerling, 22 How. 69, 16 L.

Ed. 292; Beougher v. Clark, 81 Kan. 250, 106 P. 39, 27 L. R. A. (N. S.) 198. It is equally well settled that, when the customer accepts the purchaser produced by the broker and enters into a binding contract with him, the commission is earned, if such was the contract of the parties. Ferguson v. Harris, 200 Ky. 146, 254 S.W. 329; Casey v. Hart Wallace & Co., 188 Ky. 441, 222 S.W. 111; Swinebroad v. Foster, 196 Ky. 459, 244 S.W. 881; Stuart-McKnight & Co. v. Monroe, 222 Ky. 602, 1 S.W.2d 1054. But this is not such a case. This case is based upon the written obligation of Dyer to pay $1,000 out of money collected from J. H. Pile. When the contract of brokerage, like any other contract, contemplates a completed transaction, there is no obligation to pay until the conditions of payment are fulfilled. Hale v. Kumler (C. C. A.) 85 F. 161; Holton v. Job Iron & Steel Co. (C. C. A.) 204 F. 947; American Mercantile Corp. v. Spielberg (C. C. A.) 262 F. 492; Dowell v. Pumphrey, 197 Ky. 59, 246 S.W. 157, 30 A. L. R. 822; Futrell v. Reeves, 165 Ky. 282, 176 S.W. 1151; T. W. Sandford & Co. v. Waring, 201 Ky. 169, 256 S.W. 9; Miller v. Woodward, 234 Ky. 631, 28 S.W.2d 961.

In order to state a cause of action under the contract, it was necessary for the plaintiffs to allege that Dyer had collected from Pile a sum at least equal to the amount of commission to be paid, since he was under no obligation to pay except from money so collected. But, where a person is obligated to make a payment out of particular funds, there is an implied obligation that the person liable will do nothing to prevent performance of the contract. If the fund is to be produced by the efforts of the obligor, or to result from his acts, he is under a duty to exercise reasonable care and diligence to produce the fund or to bring about the result. Owens v. Curd, 192 Ky. 146, 232 S.W. 639; Fox v Buckingham, 228 Ky. 176, 14 S.W.2d 421; same case, second appeal 237 Ky. 415, 35 S.W.2d 897; Hibbs-Kiefer Hat Co. v. Schneiderhan, 236 Ky. 470, 33 S.W.2d 304. And, if it be shown that the party obligated has prevented the creation of the conditions under which the payment...