Philbrick v. Chase.

• Decision Date: 06 April 1948
• Citation: 58 A.2d 317
• Parties: PHILBRICK v. CHASE.
• Court: New Hampshire Supreme Court

58 A.2d 317

PHILBRICK

v.CHASE.

Supreme Court of New Hampshire.

April 6, 1948.

Exceptions from Superior Court, Belknap County; Wheeler, Judge.

Action in assumpsit by Samuel P. Philbrick against Minnie Chase to recover compensation for selling defendant's realty pursuant to an oral agreement. The jury returned a verdict for the plaintiff, and the defendant brings exceptions.

Judgment for plaintiff.

Assumpsit, to recover a commission of $1,000 for selling the defendant's real estate pursuant to an oral agreement. In the week of June 15, 1946 the defendant agreed with the plaintiff that he might sell her farm and cabins near Pemigewasset Lake in the town of New Hampton for the price of $13,000 and that his commission would be $1,000 for procuring a customer. The talk was in the presence of Mr. Philbrick's son. It was agreed that a Mrs. Beane might work with the plaintiff, who did not drive a car, in getting a buyer and that she might share the commission. Mrs. Beane took two different customers to see the property but they did not buy, and she kept the plaintiff informed of her efforts to sell the property.

During the first week of July, 1946 Mrs. Beane contacted Arthur Clairmont, a real estate agent, and told him she was trying to sell the Chase property. About the middle of July Mr. Clairmont listed the Laconia residence of the Savards and learned that they were looking for cabin property. He informed Mrs. Beane and asked permission to show the Chase real estate. He was given this privilege after the plaintiff had agreed that Mr. Clairmont might join them and share the commission. July 23 or 24 the latter spoke to the Savards about the Chase cabin colony and made an appointment for the following afternoon to show it to them. They heard of it afterwards from another source and visited it the same day without Mr. Clairmont, when they obtained from the defendant the second refusal. Parties from New York having the first refusal decided not to purchase and the Savards notified Mrs. Chase that they would take the property. August 12, 1946 they paid $200 and received a receipt in writing and later paid $3,000 towards the purchase price. When the parties were ready to transfer title by deed, an attachment by the plaintiff in the present action was discovered and for this reason only the deed did not pass. The Savards took possession of the property. Other facts appear in the opinion.

Trial by jury resulting in a verdict for the plaintiff. The defendant excepted to the denial of her motion for a directed verdict and to the denial of her motion to set aside the verdict as against the law, the evidence and the weight of the evidence. Exceptions were taken to portions of the charge and to the failure of the Court to charge as requested.

All questions of law raised by said exceptions were reserved and transferred by Wheeler, J. Frederick K. Upton and Robert W. Upton, both of Concord, and Thomas J. McIntyre, of Laconia, for plaintiff.

Normandin & Normandin and Fortunat A. Normandin, all of Laconia, for defendant.

JOHNSTON, Justice.

The Court correctly charged that the legal duty of the plaintiff consisted in being the efficient cause of procuring ‘a customer willing and able to buy upon the terms proposed by the owner.’ “His undertaking was to produce a customer able and willing to buy.' Wilson v. Atwood, 81 N.H. 61, 65, 122 A. 797.' Russo v. Slawsby, 84 N.H. 89, 91, 146 A. 508, 509. See also Toohey & Co. v. Davis, 85 N.H. 80, 153 A. 832. In Russo v. Slawsby, supra, 84 N.H. 90, 146 A. 508, it was stated that the requirement of readiness was sufficiently covered by those of ability and willingness and need not be separately mentioned. If an agent is the effective cause of a specific result, he is entitled to the agreed compensation for such accomplishment.

The defendant excepted to the instruction that she and Wilfred Savard enterd into a binding agreement of sale and purchase on August 12, 1946 on the ground that the Savards did not sign any agreement but merely went into possession and made certain payments on account. Without discussing whether or not the buyers were bound to take the property, the error, if any, was harmless. It was not part of the undertaking of the plaintiff that he see that a legal contract was made between buyer and seller, but merely to procure a customer able and willing to purchase. ‘It is our conclusion that the agency agreement merely authorized Toohey to secure a purchaser who was willing and able to buy (Russo v. Slawsby, supra) and did not empower him to bind the defendant by a sale agreement.’ Toohey & Co. v. Davis, supra, 85 N.H. 85, 153 A. 835. Furthermore, the defendant is not prejudiced by the lack of a written agreement signed by the Savards. She concedes that they are in possession and have paid $3,200 on account of the price of $13,000 and that the only reason why the deal has not been completed is the fact of the attachment in the present suit. If it should appear before the consummation of the transaction that the Savards have not the requisite willingness and financial ability to go through with it, evidence of this may be brought to the attention of the Superior Court for such action as justice may require. At the trial there was abundant evidence of both ability and willingness.

One of the requested instructions of the defendant was that since on August 29, 1946, the date of the commencement of the action, the bank had not then approved of the loan to the Savards, they were not able to make the purchase. This does not state the law. Ability to buy means simply the power to effect that at the time of payment there shall be available to the buyer the necessary funds. Where the agreement does not fix the time for payment, a reasonable time is allowed. ‘The purchaser must be able to buy; and the word ‘able’ means financially able. This does...