Provost v. McCarthy
| Decision Date | 28 February 1950 |
| Citation | 72 A.2d 231,136 Conn. 447 |
| Court | Connecticut Supreme Court |
| Parties | PROVOST et al. v. McCARTHY. Supreme Court of Errors of Connecticut |
Richard T. Scully, West Hartford, Vincent W. Dennis, Hartford, for appellant.
Jacob Schwolsky, Hartford, Henry J. Goldberg, Hartford, for appellees.
Before MALTBIE, C. J., and BROWN JENNINGS, DICKENSON and BALDWIN, JJ.
The plaintiffs, real estate brokers, brought this action for a commission for services in procuring a customer who executed a written agreement for the purchase of the defendant's property. They sought, in addition, the return of a deposit of $1000 which was given them by the prospective purchaser and which they delivered to the defendant. The defendant has appealed from a judgment in their favor on both claims.
With such corrections of the finding as the defendant is entitled to, the facts necessary for the decision can be summarized as follows: The defendant listed his dwelling house for sale with the plaintiffs. His asking price was $19,500. The plaintiffs interested a Mrs. Vallerand in the property. She offered $18,000, with a cash deposit of $500. The plaintiffs had been informed by the defendant that there was a $9500 first mortgage on the property and so stated to Mrs. Vallerand. The offer was submitted to the defendant. He stated he would sell for $18,000 but demanded a $1000 deposit. Mrs. Vallerand agreed to this, and she and the defendant entered into a written agreement by the terms of which she was to assume an existing mortgage of $9500 and pay the balance of the purchase price of $18,000 in cash. The defendant accepted the down payment of $1000. The agreement provided that the defendant was to convey the property within thirty days, adjustments of taxes, interest, insurance, water charges and rents to be made as of the date of conveyance. A few days after the agreement was executed it was found that the mortgage was for substantially less than $9500. Mrs. Vallerand was unable to obtain a $9500 mortgage and could not buy with her available resources, and the sale fell through. The trial court held that this result was due to the defendant's inaccurate statement as to the amount of the mortgage. It further held that the plaintiffs had procured a customer who had entered into an enforceable contract with the defendant and that they had earned their commission. It found that the defendant had refused to return the $1000 deposit and that Mrs. Vallerand had sued the plaintiffs to recover it, in an action then pending, and it held that the plaintiffs were entitled to recover the deposit from the defendant by virtue of a pretrial stipulation the parties had entered into.
The defendant claims that Mrs. Vallerand was not financially able to buy his property, that the deal fell through for this reason and that the plaintiffs had not produced a customer ready, willing and able to buy. He claims that the execution of the agreement was not sufficient to entitle the plaintiff to a commission. A final claim is that he should not be required to return the deposit until he 'is given the opportunity to defend and establish the loss he has suffered because of the buyer's nonperformance.'
The broker is entitled to his commission, not because the owner owes to the broker a legal duty to convey, but because the broker has fully performed the work he was employed to do. Stagg v. Lawton, 133 Conn. 203, 209, 49 A.2d 599, and cases therein cited.
In the case before us, the defendant and the prospective purchaser entered into an agreement for the sale of the property. The defendant accepted a deposit of $1000 'to apply on the purchase price.' He refuses to return it. He claims the right to retain it until he has established the loss he has suffered because of nonperformance of the agreement by the buyer. He stands upon the contract. On these facts the trial court reasonably could conclude that the plaintiffs had performed their services and had earned their commission. Wright v. Reid, 111 Conn. 141, 144, 149 A. 239; Lawrence v. Hamilton, 111 Conn. 493, 495, 150 A. 690.
As to the judgment for the return of the deposit, the court found that Mrs. Vallerand had...
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Walsh v. Turlick
...to the same compensation, that is, a commission, as he would have received had the exchange or sale been effected. Provost v. McCarthy, 136 Conn. 447, 450, 72 A.2d 231; McHugh v. Bock, supra, 134 Conn. 521, 58 A.2d 740; Leete v. Norton, 43 Conn. 219, In the present action the finding establ......
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Norde v. Malash
...to complete the transaction is no bar to the plaintiff's recovery. Lavitt v. Aberle, 144 Conn. 723, 725, 138 A.2d 318; Provost v. McCarthy, 136 Conn. 447, 449, 72 A.2d 231; Finch v. Donella, supra, 626. In the case before us, the terms of sale which the defendant specified was a price of $1......
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Thomas F. Rogers, Inc. v. Hochberg
...respect to establish a right to a commission. The decision of the case at bar is not controlled by such authorities as Provost v. McCarthy, 136 Conn. 447, 72 A.2d 231, McHugh v. Bock, 134 Conn. 519, 58 A.2d 740, Meagher v. Reeney, 96 Conn. 116, 113 A. 169, and Leete v. Norton, 43 Conn. 219,......