Pastor v. Williams

• Decision Date: 30 October 1957
• Docket Number: No. 2039.,2039.
• Citation: Pastor v. Williams, 135 A.2d 460 (D.C. 1957)
• Parties: Lane PASTOR, Appellant, v. George L. WILLIAMS, Appellee.
• Court: D.C. Court of Appeals

135 A.2d 460

Lane PASTOR, Appellant, v.George L. WILLIAMS, Appellee.

No. 2039.

Municipal Court of Appeals for the District of Columbia.

Argued August 12, 1957.

Decided October 30, 1957.

Ewing Laporte, Washington, D. C., for appellant.

P. Bateman Ennis, Washington, D. C., for appellee.

Before ROVER, Chief Judge, HOOD, Associate Judge, and CAYTON(Chief Judge, Retired), sitting by designation under Code, § 11-776(b).

CAYTON, Acting Judge.

A broker appeals from a judgment denying his claim for a commission in connection with an attempted sale of a grocery business.

Defendant gave plaintiff-broker a written listing agreement containing a description of the business and terms of sale, and stating the gross weekly business of the store to be approximately $1,300.The listing agreement also contained the following rather ambiguous language:

"* * * In case you find a party to buy; or in case of sale by you at price named, or any other terms that I may accept.

"I hereby agree to pay said Broker a commission of 10% of the selling price (minimum commission $350)if and when a purchaser is found, * * *."(Emphasis supplied.)

In a few days plaintiff interested one Igdalsky in the property and secured his signature to a sales contract, accompanied by a deposit of $500.The contract provided that "Above Seller's agent's commission is earned upon procuring this offer * * *."Also it contained the following insert:

"REMARKS: one weeks trial, owner must show minimum of $1100.00 wkly sales or deposit will be returned to purchaser. * * *"

At the end of the trial week the sales approximated only $800 and the broker returned Igdalsky's deposit.Despite seller's willingness to give Igdalsky more favorable terms, the deal fell through.The broker later brought this suit for commission, and having lost, is here on appeal.

The question is whether in these circumstances the broker can successfully claim a commission for presenting an offer which never ripened into a sale.(There was no allegation or proof that the seller was guilty of fraud, deception or other bad faith.)The broker contends that under the contract he earned the commission when he procured the offer.

It has always been the law in this jurisdiction, as many decisions attest, that a broker claiming a commission must prove that he has procured a purchaser who is ready, willing and able to buy on seller's terms; and that a commission is not earned when a sale is not consummated, unless such failure is attributable to some fault or misconduct of seller.See, generally: Park Road Housing Co. v. Adas Israel Hebrew Cong., 96 U.S.App.D.C. 189, 225 F.2d 28;Rowe v. Shilby, 86 U.S.App.D.C. 74, 179 F.2d 807, 18 A.L.R.2d 373;Battle v. Price, 63 App.D.C. 326, 72 F.2d 377;Dotson v. Milliken, 27 App.D.C. 500, affirmed209 U.S. 237, 28 S.Ct. 489, 52 L.Ed. 768;Restifo v. Pastor, D.C.Mun.App., 129 A.2d 533;Leo M. Bernstein & Co. Sales, Inc. v. Miller, D.C.Mun.App., 125 A.2d 851;Downing v. H. G. Smithy Co., D.C.Mun.App., 125 A.2d 272;Cornwell v. Hollander, D.C.Mun.App., 82 A.2d 140;Shaffer v. Berger, D.C.Mun. App., 81 A.2d 469;Buckner v. Tweed, D.C.Mun.App., 44 A.2d 224, affirmed81 U. S.App.D.C. 256, 157 F.2d 211, certiorari denied330 U.S. 825, 67 S.Ct. 866, 91 L.Ed. 1275, rehearing denied330 U.S. 856, 67 S.Ct. 1092, 91 L.Ed. 1297.

In keeping with those general principles, we have ruled specifically that the mere production of an offer is no evidence that the offerer is ready and able to complete the purchase¹ An offer, without more, would be of no benefit to a seller.To hold otherwise would require vendors to pay commissions for "paper" offers and on grounds most dubious, and would open the door to a variety of collusive tactics.These are among the considerations implicit in the...