Reed's Executors v. Reed

• Decision Date: 02 January 1877
• Citation: 82 Pa. 420
• Parties: Reed's Executors <I>versus</I> Reed.
• Court: Pennsylvania Supreme Court

82 Pa. 420

Reed's Executors versus Reed.

Supreme Court of Pennsylvania.

October 16, 1876.

January 2, 1877.

October 16th 1876.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON and WOODWARD, JJ. WILLIAMS, J., absent

Error to the Court of Common Pleas of Erie county: No. 84, of October and November Term 1875.

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James C. & F. F. Marshall and S. E. & T. S. Woodruff, for plaintiffs in error.—To render a contract binding it must be acceded to by both parties at the time: Lyon v. Fessler, 7 Watts 48; 1 Pars. on Con., chap. 2, sect. 1, title, "Assent of Parties," and cases cited. If the offer is withdrawn within the time for its performance and after its acceptance by the broker, there can be no recovery: Coffin v. Landis, 5 Phila. R. 176; 1 Pars. Con. 482. Mutuality essential to complete a contract: Donaldson v. Kerr, 6 Barr 487. Commissions cannot in general be recovered unless there is a valid sale capable of being enforced by both parties and resulting in a debt due or owing for the price: Kellogg v. Conklin, 6 Phila. R. 177; Longstreth v. Long, Id. 179. Vendor must accept purchaser before commissions can be claimed: Pratt v. Patterson, 7 Phila. R. 135.

Brokers are not even allowed commissions where the principal prevented the consummation of the bargain: Read v. Rann, 21 Eng. Com. Law Rep. 106; Broad v. Thomas, 20 Id. 62. Nor where he has not been immediate cause of sale: Green et al. v. Mules, 100 Eng. Com. Law Rep. 868; Keys v. Johnson, 18 P. F. Smith 42. Nor where the terms of the employer are not exactly met: McGarock v. Woodlief, 20 Howard 221. Party may employ broker and yet negotiate himself: McClave v. Paine, 49 N. Y. 561; Hungerford v. Hicks, 39 Conn. 259. To obtain commissions broker must have procured buyer and at the price named by owner: Clendendon v. Pancoast, 25 P. F. Smith 213.

C. B. Curtis and L. S. Norton, for defendant in error.—Where a party contracts to procure a purchaser for a property and has complied with his part of the contract and the other party fails to fulfil his part, the broker may receive compensation agreed upon: Edwards v. Goldsmith, 4 Harris 43; Hall v. Rupley, 10 Barr 231; Where a broker authorized to sell has commenced negotiations, pending the same, the owner cannot sell and refuse to pay commissions: Keys v. Johnson, 18 P. F. Smith 42; Earp v. Cummins, 4 Id. 394; Moses v. Bierling, 31 N. Y. 462; Barnard v. Monnot, 40 N. Y. 203; Clapp v. Hughes, 1 Phila. R. 382; Kock v. Emmerling, 22 Howard 69; Young v. Hunter, 6 N. Y. 204.

Mr. Justice WOODWARD delivered the opinion of the court, January 2d 1877.

There was technical error in the answer to the first point of the defendants below. The declaration set out a contract on the part of Charles M. Reed to pay the plaintiff the sum of $10,000, if he "would procure a purchaser of and effect a sale of what was known as the Erie canal, in which General Reed was the principal stockholder and largely interested." This was followed by an averment that a purchaser had been secured, a sale effected, and his part of the agreement performed by the plaintiff. The point was in these words: "If the jury believe from the evidence that some time in July 1870 there was an agreement between Charles M. Reed and the plaintiff, by which plaintiff was authorized to sell the Erie canal as the agent of General Reed, before the plaintiff is entitled to recover he must show to the satisfaction of the jury that he made a sale or procured a sale to be made." The answer was: "Refused because no evidence of such a contract." The disposition of the point thus made was entirely inadequate. The effect of it was to sever all connection between the case which the pleadings presented and the case which the evidence made out. The interpolation of the words "as the agent of General Reed," into the point did not justify the answer, for the jury were told, in another connection, that "the plaintiff was in one sense of the word the agent of General Reed, at least to the extent of requiring from him perfect good faith towards the general in the whole proceedings." In the general charge the relations of the parties were described with sufficient accuracy, but when the jury were told that there was no evidence of the contract averred in the declaration, the whole case was adrift, and the grounds of the verdict for the whole amount of the plaintiff's claim must have been chance and conjecture.

In other respects the governing questions in controversy, so far as they were developed, were properly ruled. If the plaintiff acted upon the proposition made to him in July 1870, and procured parties to enter into a negotiation for the purchase of the canal, and while this was pending, five or six weeks were allowed to those parties to decide upon the offer of terms General Reed had made in answer to that which they had presented, a contract relation was created, which was violated by the sale to Scott within the time allowed. It is true that the agreement for the extension of time was without any consideration to support a contract which the parties proposing to purchase could assert. But the rights of the plaintiff stood on different grounds. He had rendered service in view of the inducement which had been offered him by General Reed, and when the sale to Scott made it impossible to carry the original agreement into effect, he became entitled to the stipulated compensation. In Edwards v. Goldsmith, 4 Harris 43, where a broker was to receive a definite commission for procuring a purchaser for certain lots of ground, and complied with his part of the contract, but the defendant, without good reason, failed to comply on his part, it was held that the broker could recover in indebitatus assumpsit the amount of compensation agreed upon. And in Keys v. Johnson, 18 P. F. Smith 42, it was decided that when a broker authorized to sell at private sale has commenced a negotiation, the owner cannot, pending the negotiation, take it into his own hands and complete it, either at or below the price limited, and then refuse to pay the commissions. This view of the rights of the parties disposes in substance of the first, third and fourth assignments of error.

The failure of the plaintiff to protest against the sale of the canal to Scott, when he was informed it was about to be made, was not necessarily fatal to his right to recover. It is to be assumed for present purposes that General Reed was aware of all the facts on which the rights of the plaintiff rested. The court charged that...