Pittelkow v. Jefferson Park Land Co., 49.

• Decision Date: 25 February 1938
• Docket Number: No. 49.,49.
• Citation: 283 Mich. 374,278 N.W. 102
• Parties: PITTELKOW v. JEFFERSON PARK LAND CO., Limited, et al.
• Court: Michigan Supreme Court

283 Mich. 374

278 N.W. 102

PITTELKOW

v.JEFFERSON PARK LAND CO., Limited, et al.

No. 49.

Supreme Court of Michigan.

Feb. 25, 1938.

Action by Arthur G. Pittelkow against the Jefferson Park Land Company, Limited, and others for commission for the sale of real estate. From a judgment for the defendants notwithstanding the verdict, the plaintiff appeals.

Affirmed.Appeal from Circuit Court, Wayne County; John P. Scallen, judge.

Argued before the Entire Bench.

Prentis, Fitch & Hayes, of Detroit, for appellant.

Miller, Canfield, Paddock & Stone, of Detroit, for appellees.

POTTER, Justice.

Plaintiff sued defendants to recover a commission upon the sale of real estate, had verdict of the jury, and the trial court on motion of defendants rendered judgment for defendants notwithstanding the verdict. Plaintiff appeals, and upon such appeal the testimony must be considered in the light most favorable to plaintiff.

There is no proof plaintiff was a licensed real estate broker, under 2 Comp.Laws 1929, c. 189, but no question is raised about it.

The Federal Housing Commission desired to acquire lands in the city of Detroit for a federal housing project. It would not employ and pay a broker to make the purchase. Defendants had lands to sell. The representative of the Federal Housing Commission knew of these lands. Plaintiff became interested in the acquisition of the property at the solicitation of citizens of Detroit. He opened negotiations with defendants and made a contract with them under date of August 22, 1935, the essential part of which is as follows: ‘Upon your representations that this property is to be used for a building project, which is to be commenced in the very near future, and for which satisfactory assurances shall be given us, we will sell this property to your principals for a price of Two Hundred and Eighty five Thousand dollars ($285,000), cash. We shall pay out of this sum the regular realty broker's commission of five per cent (5%) to the person or persons whom you may designate, which commission is to be paid only and when we receive the full purchase price.'

Plaintiff, having accepted this contract, reported it to the persons who had induced him to negotiate with defendants and an offer of $75,000 was made for the property and reported by plaintiff to defendants and refused by them. Afterward the government representative who knew of the property negotiated directly with defendants and purchased the property covered by the letter of August 22, 1935, above quoted, and other property of a substantial amount, all for $170,000. Upon learning of this sale by defendants to the government, plaintiff brought suit; and the question is his right to recover.

Ordinarily, in order for a real estate broker to recover a commission where he has an express written contract, he must show performance thereof. Defendants contend plaintiff must have produced a purchaser, ready, able, and willing to purchase the property on the terms of the contract; that plaintiff did not do so, and, therefore, may not recover. If plaintiff was entitled to go to the jury, defendants could not avoid a liability by reason of including other lands in the sale to the purchaser with whom plaintiff was negotiating. Ranson v. Weston, 110 Mich. 240, 68 N.W. 152. And, under some circumstances, a real estate broker may be entitled to a commission even though he did not produce a purchaser ready, able, and willing to acquire the property on terms satisfactory to the seller. If service only is contracted and performed, there is a consideration irrespective of the results acquired. Gonte v. Rosenberg, 221 Mich. 283, 191 N.W. 198. And where a broker is employed only for the purpose of making a sale, he becomes entitled to his commission when he procures for his principal a party with whom he is satisfied and who actually contracts for the purchase of the property at a price acceptable to the owner. Fuday v. Gill, 195 Mich. 613, 161 N.W. 900. And if it is so provided in the contract, a broker may be entitled to commission on a sale made by the owner without the broker's cooperation. Axe v. Tolbert, 179 Mich. 556, 146 N.W. 418;Crawford v. Cicotte, 186 Mich. 269, 152 N.W. 1065. Knowing plaintiff was negotiating with the purchaser for a sale of the property, defendants could not avoid the payment of a commission merely by concluding his broker's agency and making the sale themselves. Heaton v. Edwards, 90 Mich. 500, 51 N.W. 544;McGovern v. Bennett, 146 Mich. 558, 109 N.W. 1055;Davis-Fisher Co. v. Hall, 182 Mich. 574, 148 N.W. 713, L.R.A.1915A, 1224;West v. Newton, 229 Mich. 68, 201 N.W. 196.

Under the cases in which plaintiff has been permitted to recover because he was the procuring cause of the sale, plaintiff must show that he was the procuring cause of the sale, that the purchaser learned of the property through him, and that through his...