Richson v. Wilson, Record No. 3320.

• Decision Date: 26 April 1948
• Docket Number: Record No. 3320.
• Parties: FRANK S. RICHESON, ET AL. v. NORWOOD WILSON.
• Court: Virginia Supreme Court

Page 536

187 Va. 536

FRANK S. RICHESON, ET AL. v. NORWOOD WILSON.

Record No. 3320.

Supreme Court of Virginia, Richmond.

April 26, 1948.

Present, Hudgins, C.J., and Gregory, Eggleston, Spratley and Miller, JJ.

1. BROKERS — Compensation — Brokers' Undertaking. — Ordinarily, the undertaking of a real-estate broker is to procure a purchaser ready, willing and able to buy the property at the terms stipulated by the owner. When the broker does this he has earned his commission.

2. BROKERS — Compensation — Written Contract by Purchaser Not Required. — In fulfilling his undertaking to procure a purchaser ready, willing and able to buy at terms stipulated by the owner, unless his agreement with the owner so provides, the broker is not required to procure a written contract signed by the purchaser as a condition precedent to his right to recover commissions nor does his right to compensation depend upon a consummation of the sale.

3. BROKERS — Compensation — Consummation of Particular Sale — Case at Bar. — In the instant case, an action for commissions by a real-estate broker for services rendered in negotiating the alleged sale of property by their agent, it was shown that the commission was stipulated to be conditioned upon the consummation of a particular sale, at a particular price, and within a specified time. The particular sale was never consummated.

Held: That is an undertaking of this character the broker was not entitled to his commission unless the transaction was consummated or unless the consummation was prevented by the arbitrary action of the owner.

4. CONTRACTS — Acceptance and Offer — Variance. — In order to form a contract, there must be no variance between the acceptance and the offer. A proposal to accept upon terms varying from those offered is a rejection of the offer and puts an end to the negotiations, unless the party who made the original offer renews it or assents to the modification suggested. Having in effect rejected the offer by his conditional acceptance, the offeree cannot subsequently bind the offeror by an unconditional acceptance.

5. BROKERS — Compensation — Dependence upon Consummation of Particular Sale — Whether Consummation Prevented by Owner — Case at Bar. — In the instant case, an action for commissions by a real-estate broker for services rendered in negotiating the alleged sale of property by their agent, it was shown that the payment of the commission was stipulated to be conditioned upon the consummation of a particular sale, at a particular price, and within a specified time, and that the particular sale had never been consummated but that the owner had sold to another party. The brokers contended that the consummation of the sale was prevented by the arbitrary conduct of the owner. It was shown that instead of having the particular purchaser accept unconditionally and unqualifiedly an offer made by the owner, the brokers' agent prepared, had the prospective purchaser execute, and mailed to the owner a written contract which clearly injected into the negotiations two terms directly in conflict with those specified by the owner for the sale. The owner did not accept this counteroffer.

Held: That the fact that the owner did not accept the counteroffer had the legal effect of rejecting the former offer and putting an end to the negotiations, and leaving the owner entirely free to sell the property whom he pleased; thus the sale failed of consummation, not because of any arbitrary conduct of the owner, but because the brokers failed in the performance of their undertaking in that they did not procure from the prospective purchaser, an acceptance of the owner's offer of sale.

Error to a judgment of the Circuit Court of the city of Hopewell. Hon. J. Jordan Temple, judge presiding.

The opinion states the case.

George B. White, for the plaintiffs in error.

Jones & Jones, for the defendant in error.

EGGLESTON, J., delivered the opinion of the court.

This is a companion case to Mooers Wilson, 183 Va. 910, 33 S.E.(2d) 791, in which we affirmed a decree of the Circuit Court of Prince George county denying specific performance of an alleged contract, under the terms of which it was claimed that Norwood Wilson had agreed to sell to W. A. Mooers a valuable farm, known as "Maycox," located in Prince George county, Virginia.

The present suit is an action for commissions brought by Frank S. Richeson and others, partners trading as H. T. Richeson & Company, against Wilson for services rendered in negotiating the alleged sale of the property by Wilson to Mooers.

While the factual background in the two suits is the same, there are important differences in the evidence. The chancery cause of Mooers Wilson, supra, was submitted and a decree rendered on the evidence offered by the complainant, Mooers. Wilson did not testify or offer any evidence on his behalf.

In the present suit a jury was waived, the evidence was heard ore tenus by the trial court and was fully developed by both sides. Upon consideration thereof the trial court rendered judgment, denying the claim for commissions, and the matter is before us on a writ of error granted the brokers.

As settled by the trial court's finding, the evidence may be stated thus:

Some time in the year 1940, W. R. Jenkins, a salesman for H. T. Richeson & Company, a reputable real-estate firm located in Richmond, inquired of Wilson whether the farm was for sale. Wilson advised him that it was, but declined to list it with Jenkins' firm, or to authorize him to sell it. From time to time Jenkins made the same inquiry of Wilson and received the same reply.

In May, 1943, Jenkins again approached Wilson, telling the latter that he had a prospective purchaser for the farm. Wilson replied that the farm was for sale if a satisfactory price could be obtained. Jenkins advised Wilson that his customer might pay $10,000 for the property, but Wilson refused to consider this price.

On May 18, Jenkins submitted to Wilson a written offer from W. A. Mooers to buy the property at $13,500, which Wilson declined. Then followed several offers and counteroffers, in which there were detailed certain items of farm equipment, livestock, etc., which should be included in the purchase price of the property. Finally, on May 20, there was a telephone conversation between Jenkins and Wilson in which these details were tentatively agreed upon. Jenkins died before the trial of the present case, but Mooers had listened to the conversation on a telephone extension line in Jenkins' office and testified briefly as to what was said.

Mooers testified that after they had agreed in this telephone conversation what machinery, equipment, etc., should be sold with the farm, Wilson said "it is a deal."

Wilson categorically denied having used this expression, or any other which indicated that the transaction was closed. He said that he merely outlined to Jenkins the terms upon which he would sell the property. The finding of the trial court, of course, settled this conflict in Wilson's favor.

On the same day (May 20), Wilson wrote Jenkins two letters. In the first he said:

"Referring further to our telephone conversation of today with particular reference to letter of May 19th, I understand that you are holding pending delivery of proper title a check for $1,000 which is to be forfeited to the writer should the balance of the purchase price on Maycox Plantation, namely, $14,000 cash, that is $15,000 total, not be paid when proper title is presented to your prospective purchaser. In addition to conveyance of the real estate, the writer will give a bill of sale covering the items referred to in letter of May 19th * * *. (Here follows a list of items of farm equipment, livestock, etc.)

"All other items of personal property to be removed by the writer.

"I am enclosing sketch of an old plat of Maycox which might be of interest to Mr. Mooers. I understand that you will be ready to close this sale, paying to the writer $15,000 in cash any day on and after May 24th, but before May 31st, 1943."

In the second letter Wilson wrote:

"I have not referred to any commission in previous letters, but upon consummation of this sale whereby the writer receives $15,000 in cash, you are to be paid a commission of $1,000. After the necessity of adding the additional machinery, which on a second-hand market would no doubt be valued at approximately $500, the reduction that you would take in your commission in accordance with our conversation, would exceed $500, and for this reason I have set forth the commission as $1,000, which is in accordance with our understanding."

Immediately after this telephone conversation Jenkins had the stenographer in his office fill out a printed form of "Contract of Sale" to read thus:

"This Agreement, made this 18th day of May, 1943, between NOORWOOD WILSON, party of the first part, and W. A. MOOERS, party of the second part.

"Witnesseth: That the said party of the first part has bargained and sold, and both hereby bargain and sell to the said party of the second part, the following Real Estate, to wit: All that lot of land located in Prince George County, Virginia, bounded on the north by the James River, on the west by Powell's Creek, and known as Maycock's Farm, containing 560 acres, more or less, together with improvements thereon, for the sum of $15,000 (FIFTEEN THOUSAND AND NO/100 dollars) gross, payable as follows, to wit: ALL cash, terms of sale to be complied with in thirty (30) days, a deed of general warranty with the usual covenants of title to be executed and delivered by the said party of the first part to the said party of the second part. The said party of the second part covenants to accept and comply with the terms of said sale, as herein set forth, provided the title thereto be free from all valid objections, and doth pay down the sum of One Thousand and no/100 Dollars, the receipt whereof is hereby acknowledged, to bind said sale,...