Phillips v. Brown

• Citation: 21 Idaho 62,120 P. 454
• Parties: C. A. PHILLIPS, Respondent, v. HERMAN BROWN, JIM MURPHY and C. TIEDEMAN, Appellants
• Decision Date: 23 December 1911
• Court: Idaho Supreme Court

120 P. 454

21 Idaho 62

C. A. PHILLIPS, Respondent, v. HERMAN BROWN, JIM MURPHY and C. TIEDEMAN, Appellants

Supreme Court of Idaho

December 23, 1911

SUFFICIENCY OF EVIDENCE-AGENCY-COMMISSION FOR SALE OF PROPERTY-TERMINATION OF CONTRACT.

(Syllabus by the court.)

1. Evidence in this case examined, and held not to support the findings and judgment of the trial court.

2. Where an action is brought upon a contract it is error for the trial court to admit in evidence in support of said complaint a contract of a different date for different terms and conditions than that which is plead in the complaint without proper allegations being made in the complaint showing the relation of such proffered contract to the contract plead in the complaint.

3. It is a general rule of law recognized by the courts that where a party employs a real estate broker to sell a piece of property at a stipulated price, and the broker procures a purchaser who purchases such property, or is able and willing to purchase such property, upon the terms given the agent by the owner, the broker is entitled to his commission.

4. Where a broker is employed by the owners of property to find a purchaser and the owners offer to pay a commission of ten per cent upon such agent making such sale, and the option is good for eighteen months, and thereafter said agent produces a purchaser who enters into a contract with the owners in which the owners agree to sell said property, and payments were to be made upon specific dates of certain amounts, and time was the essence of the contract of sale, and thereafter the owners gave an order on the bank where the agreement to purchase was deposited in escrow to pay to such agent ten per cent upon payments made under said contract, and such purchaser fails to make payments in accordance with said contract and offers no reason or excuse therefor, and said contract is abandoned, and the owners refuse to confer further with the proposed purchaser or make any further contract with him, and nothing is done under said contract and the owners were in no way responsible for such forfeiture, and thereafter the owners in good faith make a contract through another person to sell to him said property and such sale is completed, the first agent employed to make such sale is not entitled to recover a commission.

APPEAL from the District Court of the Second Judicial District for Idaho County. Hon. Edgar C. Steele, Judge.

An action to recover commission as agent in the sale of mining property. Judgment for plaintiff. Defendants appeal. Reversed.

Judgment reversed, and a new trial granted. Costs awarded to appellant.

F. E. Fogg, for Appellants.

Broker has no right to commissions, if his services fail to accomplish a sale, and after the proposed purchaser has decided not to buy, other persons induce him to do so. (Earp v. Cummins, 54 Pa. 394, 93 Am. Dec. 718.)

Unless the owner has been responsible for the delay in making the sale to the purchaser, or such delay has been caused by some negligence or fraud of the land owner, then if the sale be not completed within the time limited the broker cannot recover commission, although the owner afterward in good faith succeeds in selling the property to the same party. (Fultz v. Wimer, 34 Kan. 576, 9 P. 316; La Force v. Washington University, 106 Mo.App. 517, 81 S.W. 209; Sibbald v. Iron Co., 83 N.Y. 378, 38 Am. Rep. 441; Wylie v. Bank, 61 N.Y. 415; Fairchild v. Cunningham, 84 Minn. 521, 88 N.W. 15; Beauchamp v. Higgins, 20 Mo.App. 514; Page v. Griffin, 71 Mo.App. 524.)

In the absence of any bad faith by defendant in making the sale the plaintiff could not recover any commission. (Nadler v. Menschel, 110 N.Y.S. 384.)

W. N. Scales, for Respondent.

Where the broker procures a party ready and willing to buy, but the principal takes the further proceedings out of his hands and concludes the sale himself or through another, the broker has earned his compensation. (Gottschalk v. Jennings, 1 La. Ann. 5, 45 Am. Dec. 70, and cases cited; Smith v. Anderson, 2 Idaho 537 (495), 21 P. 412; Wood v. Broderson, 12 Idaho 190, 85 P. 490.)

It is sufficient to entitle a real estate agent to receive his commission for the sale of land if he, under a contract with the owner thereof, has been the procuring cause of such sale. He need not conduct it to a final and successful conclusion. (Marlatt v. Elliott, 69 Kan. 477, 77 P. 104; Norris v. Byrne, 38 Wash. 592, 80 P. 808; Ratts v. Shepherd, 37 Kan. 20, 14 P. 496; Wilson v. Sturgis, 71 Cal. 226, 16 P. 772; Knox v. Parker, 2 Wash. 34, 25 P. 909; 19 Cyc. 261; Barton v. Rogers, 84 Ill.App. 49; Winans v. Jaques, 10 Daly (N. Y.), 487; Shipman v. Frech, 1 N.Y.S. 67; Wood v. Wells, 103 Mich. 320, 61 N.W. 503.)

STEWART, C. J. Ailshie and Sullivan, JJ., concur.

OPINION

STEWART, C. J.

This is an action to recover commission for the sale of certain mining property. The complaint alleges that on or about the 12th day of October, 1909, the defendants entered into a contract with the plaintiff wherein and whereby they promised, contracted and agreed that if he would bond, contract for the sale or sell certain mining property, that they would compensate him for his services in making such sale and pay him the sum of ten per cent on all amounts received by the defendants as the purchase price of said property, said ten per cent to be due and payable when each and every amount was paid to the defendants on such purchase price, and as the same was paid; that under said contract the plaintiff employed his time and experience to find a purchaser and did find a purchaser in the person of one R. Alvin Weiss and associates, who entered into a contract and agreement with the defendants whereby they contracted and agreed that they would pay the defendants the purchase price of said property in the sum of $ 100,000, as follows: $ 500 on or before March 5, 1910; $ 5,000 on or before May 5, 1910; $ 5,000 on or before August 20, 1910; $ 45,000 on or before April 20, 1911; $ 44,500 on or before October 20, 1911; and that possession of the property was delivered to R. Alvin Weiss, and that they are now in possession; that under the contract of purchase Weiss and his associates paid to the defendants the following payments due under said contract of purchase, to wit: $ 500 on March 5, 1910; $ 5,000 on or before May 3, 1910.

A supplemental complaint was afterward filed alleging the further payment on the purchase price of $ 5,000 made on August 20, 1910. To this complaint the defendants filed an answer, and deny that on the 12th day of October, 1909, or at any other time or at all, they entered into a contract or agreement with the plaintiff for the sale of the mining property, or any agreement, except that an agreement was made on December 27, 1909, between the defendants and the plaintiff, whereby it was agreed that a commission of ten per cent was to be retained by the First National Bank of Grangeville where contract and deed were in escrow, to be paid to Phillips out of the payments made on the Center Star Group of mines, and that the agreement held good only during the life of the above-named contract in escrow; denies that the plaintiff in pursuance of the contract alleged in the complaint employed his time or knowledge or experience to find a purchaser, or that he did find a purchaser in the person of R. Alvin Weiss and associates, or that he procured a purchaser for said property at all; and denies that Weiss and his associates purchased said property or entered into a contract and agreement as described in the complaint, and denies that they delivered possession to Weiss and his associates, and denies that they are in possession of said property; and denies that they entered into any contract except a certain agreement on November 11, 1909, for the sale of said property, which was the agreement mentioned in the paper of December 27, 1909; and denies that Weiss and his associates paid to the defendants any money upon the contract described in the complaint or upon any contract or agreement, and denies that the plaintiff complied with his part of the contract or agreement made for the sale of the property; and alleges that R. Alvin Weiss, mentioned in the agreement between the plaintiff and the defendants, defaulted in his contract for the purchase of said property, in the sum of $ 10,000 due on February 8, 1910, and that said sum or any part thereof was ever paid by Weiss; and alleges that after February, 1910, and on March 1, 1910, the escrow mentioned in said contract between Weiss and the defendants, as well as said contract between these defendants and the plaintiff, was terminated in accordance with the terms thereof, and denies that anything is due.

A jury was waived and the cause was tried to the court. The findings recite: That on or about October 12, 1909, the defendants were the owners of certain mining property and on said date entered into a contract and agreement with the plaintiff whereby they promised and contracted and agreed that if the plaintiff would sell the said property they would compensate him by paying for his services a commission of ten per cent upon all amounts received by the defendants on the purchase price of the property, and that the said ten per cent would be due and payable whenever each amount was paid to said defendants on the purchase price; that under said contract the plaintiff employed his time and money to find a purchaser and found a purchaser in the person of R. Alvin Weiss and associates, who entered into a contract whereby they agreed to pay $ 100,000 for said property; $ 500 on March 5, 1910; $ 5,000 on or before May 5, 1910; $ 5,000 on or before August 20, 1910; $ 45,000 on or before April 20, 1911, and $ 44,500 on or before ...