Rieffer v. Hollingsworth.

• Citation: 52 A.2d 632
• Decision Date: 25 April 1947
• Docket Number: No. 484.,484.
• Parties: RIEFFER v. HOLLINGSWORTH.
• Court: Court of Appeals of Columbia District

52 A.2d 632

RIEFFER

v.HOLLINGSWORTH.

No. 484.

Municipal Court of Appeals for the District of Columbia.

April 25, 1947.

Appeal from the Municipal Court for the District of Columbia, Civil Division.

Action by Alice Rieffer, trading as Dupont Realty Company, against Lola Hollingsworth, for commission due on sale of rooming house business. From a judgment for defendant, plaintiff appeals.

Reversed with instructions.

Leroy A. Brill, of Washington, D. C., (Mark P. Friedlander, of Washington, D. C., on the brief), for appellant.

Charles J. King, of Washington, D. C., for appellee.

Before CAYTON, Chief Judge, and HOOD and CLAGETT, Associate Judges.

CLAGETT, Associate Judge.

Plaintiff, a licensed ‘business chance’ and real estate broker, sued defendant for a commission claimed to be due on the sale of a rooming house business. The trial court, sitting without a jury, ordered judgment for defendant at the close of plaintiff's case. Plaintiff appeals.

Defendant, Mrs. Hollingsworth, owned the business, including a lease on the premises involved, the furniture and the good will of the venture. Desiring to dispose of this business, she gave to plaintiff a 90-day, non-exclusive written listing to sell at a fixed price and specified terms. One of plaintiff's salesmen interested a Mr. James A. Creel and showed him the property. This was the first contact Mr. Creel had with the business. Mr. Creel thereupon made a written offer which differed in several important respects from the terms fixed in the listing, although the price-$12,000-was the same.

Following some preliminary negotiations, there was a conference between defendant, her attorney, plaintiff, one of plaintiff's salesmen, and Mr. Creel. During this conference defendant and her attorney objected to several of the provisions of Mr. Creel's offer, including one inserted by plaintiff's attorney to the effect that if the transaction was closed at such attorney's office the parties would share in paying him a fee. As to most of these differences, the testimony indicated the parties could have reached an agreement but they did not actually do so. An important difference between the parties was that defendant insisted upon transferring the personal property by a conditional bill of sale instead of selling outright and taking back a chattel deed of trust as offered by Mr. Creel. Mr. Creel was adamant on this point, saying he might want to resell the property and that a conditional sale contract would complicate such a transaction. At the end of this conference Mr. Creel's signature on his offer was stricken at his direction and a check for $1,000 which Mr. Creel had in his pocket was not delivered. Plaintiff's salesman, who had handled the matter, was asked if he had attempted to get in touch with defendant after this conference. He first answered that he ‘saw it would be of no avail to talk’ to her but then added he believed he had called her up a few days later to ask if the business had been sold and she said ‘there was something pending but nothing definite.’ He also testified he had talked subsequently to Mr. Creel's attorney but, on objection, he was not permitted to recite this conversation. Asked whether he had abandoned the attempt to sell the business after the conference recited above, he replied: ‘No. I did not.'

Two or three days after the rejection of Mr. Creel's offer by defendant, when plaintiff's authority to sell still had several weeks to run, she gave to another licensed broker a written, non-exclusive, 30-day listing of the business. On this listing the price was set at $2,000 less than on the listing with plaintiff and the down payment was reduced by $2,500. Plaintiff was never informed of the better terms offered through the second broker. Shortly thereafter, according to Mr. Creel, he went to the office of the second broker to talk about some advertisements this broker had in the newspapers regarding other properties and during the ensuing conversation defendant's business was mentioned. Mr. Creel remembered the property as the one shown him by plaintiff's salesman, so informed the second broker, and made an offer through the latter. Negotiations ensued with defendant's attorney on defendant's authority, a contract was drawn up, and as a result the business was sold to Mr. Creel and his mother by defendant through the second broker. According to defendant, she learned personally that Mr. Creel was the buyer when his signed offer was presented to her for signing and she recognized his name. The price paid was $2,500 less than the original listing with plaintiff, the cash payment was less than one-half of that called for on the original listing, and the balance was secured by a chattel deed of trust on all the furnishings as insisted on from the beginning by Mr. Creel, but refused by defendant in the negotiations through plaintiff. The second broker has received his 10% commission on the sale.

Defendant, appellee here, takes the position that plaintiff, although first introducing the ultimate buyer, Mr. Creel, did not conclude a contract upon the terms specified by defendant, that under the circumstances defendant had every right to consider that plaintiff had abandoned her efforts to sell the business to Mr. Creel, and that where the sale of property is entrusted to two or more competing brokers on a non-exclusive basis the broker who concludes a contract between the buyer and seller is entitled to the commission. Plaintiff urges that she was the procuring cause of the sale, that defendant by quoting a lower price and better terms to the second broker did not remain neutral between them, that therefore plaintiff was entitled to her commission, and that in any event the trial court erred in giving judgment at the conclusion of plaintiff's case.

In the absence of a provision in the brokerage contract to the contrary, it is fundamental that where property is listed with several agents a purchaser may be negotiating with different agents of the owner, and if so, that agent is entitled to the commission who first produces a contract satisfactory to and accepted by the owner, provided the owner has remained neutral and has not colluded with the successful agent to defeat another agent who has been negotiating with the same purchaser. ¹ That broker is the procuring cause of a sale who finds a purchaser, ready, willing and able to buy upon the terms authorized by the seller, ² or who produces an offer satisfactory to the vendor, provided there has been no bad faith towards another broker. ³ Whether a broker was the procuring cause of a sale is ordinarily a question for the trier of the facts....