Ritch v. Robertson

• Decision Date: 02 May 1919
• Citation: 106 A. 509,93 Conn. 459
• Court: Connecticut Supreme Court
• Parties: RITCH v. ROBERTSON.

106 A. 509

93 Conn. 459

RITCH v. ROBERTSON.

Supreme Court of Errors of Connecticut.

May 2, 1919

Appeal from Court of Common Pleas, Fairfield County; John R. Booth Judge.

Action by Gilbert M. Ritch against Caroline Robertson to recover a broker's commission. Judgment for plaintiff on a trial by the court, and defendant appeals. Reversed and remanded, with directions.

The defendant employed the plaintiff to sell certain real estate for $6,500, for a commission of 2 1/2 per cent. The plaintiff attempted to sell to one Robertson, who refused to pay more than $5,500. The defendant then authorized a sale for $6,000 but Robertson still refused to pay more than $5,500. Thereupon at the request of the defendant she was by the plaintiff introduced to Robertson under the agreement that if she sold to Robertson she would pay the plaintiff his commission. The defendant was unable to effect a sale to Robertson. Robertson, believing that a third party could buy cheaper than he could, arranged with one Ehlers to buy for not more than $5,750 and then deed the property to him agreeing to furnish Ehlers the money. Ehlers then attempted to buy the property of the defendant, which, after considerable negotiation, he succeeded in doing, for $5,750. The defendant supposed and believed that Ehlers was acting for himself and had no connection with or relation to either Robertson or the plaintiff, and before closing with Ehlers she called Robertson on the telephone, informed him of the offer and proposal to sell to him for $5,800, if he still desired to buy. Robertson, knowing Ehlers made the offer, declined to buy, and the defendant then entered into a written agreement to sell to Ehlers, who also paid something down. This was about August 2, 1915.

The defendant, some time after she had made her contract with Ehlers and before September 8, 1915, learned of the arrangement between Ehlers and Robertson. She executed and delivered her deed to Ehlers September 20, 1915, and at the same time Ehlers executed and delivered his deed of the same property to Robertson. Robertson furnished Ehlers the money necessary to complete the transaction. Both deeds of the property were, at the request of the defendant, prepared by her attorney, after she learned of the Ehlers-Robertson arrangement and prior to the day of delivery. The plaintiff knew nothing of the negotiations between Ehlers and the defendant, nor does it appear that he knew of the arrangement between Ehlers and Robertson, until after the sale was completed and the deeds passed. The defendant had not withdrawn the property from the hands of the plaintiff prior to September 20, 1915.

Upon this statement of facts, slightly condensed from the record, the trial court rendered judgment for the plaintiff to recover his commission. The defendant appealed.

William C. Rungee, of Greenwich, and George E. Beers, of New Haven, for appellant.

Walter M. Anderson, of Greenwich, for appellee.

GAGER J.

The contract did not give the plaintiff the exclusive right of sale. To have this effect, the right must be given to the broker in unequivocal terms or by necessary implication. Hungerford v. Hicks, 39 Conn. 259; 4 R. C. L. 259; 44 L.R.A. 344, n., 24 L.R.A. (N. S.) 279, n. This court has many times stated what was necessary to entitle a broker to his commission. In the recent case of Butler v. Ouwelant, 90 Conn. 434, 97 A. 310, the court, citing a number of earlier cases, said:

" To entitle the plaintiffs, as brokers, to the compensation which they claim to recover in this action, it should appear that they produced a person who was ready, able, and willing, both to accept and live up to the terms offered by the defendant."

It is also well settled that a broker cannot put himself in a position antagonistic to his principal's interest. Ebert v. Haskell, 217 Mass. 211, 104 N.E. 556; Veasey v. Carson, 177 Mass. 117, 58 N.E. 177, 53 L.R.A. 241, and note.

The appeal turns, substantially, upon the answer to the question: Was the plaintiff the procuring cause of the sale? The trial court found, as a conclusion of fact from subordinate facts set forth in the finding, that the plaintiff was the procuring cause. This conclusion may be reviewed on appeal. Hoadley v. Savings Bank of Danbury, 71 Conn. 599, 42 A. 667, 44 L.R.A. 321; Seward v. Seward & Son Co., 91 Conn. 190, 99 A. 887. Robertson appears to have been the only person with whom the plaintiff had negotiations. After twice failing to sell to him, the plaintiff and the defendant agreed that the defendant should be introduced to Robertson, and that if she succeeded in effecting a sale to him the plaintiff should have his commission. The defendant also failed to make the sale to Robertson, and negotiations with Robertson were at a standstill. It appears, however, that Robertson really wanted the property and, entirely without the knowledge of either the plaintiff or defendant, put up a scheme by which he hoped ultimately to get the property at a less price than that for which he could buy it directly. He agreed with one Ehlers, hitherto unknown to both plaintiff and defendant as a possible purchaser, that Ehlers should buy the property, if possible, at a price as an original independent purchaser, and then convey to him. Ehlers offered $5,750, but the defendant with the usmost good faith, both to the plaintiff and to Robertson, called up Robertson before closing with Ehlers and again offered him the property for $5,800. He declined to buy. The defendant's good faith to the plaintiff is clear when it is observed that a sale to Robertson for $5,800, less commission, would have meant a loss to the defendant of $95 as against the sale to Ehlers with no commission. Upon the refusal of Robertson to buy, the defendant made her contract with Ehlers, and became bound to convey to him. If bound to Ehlers, information subsequently obtained by her of Robertson's scheme is immaterial. She had no contract with Robertson. Knowing that Ehlers had made her an offer, Robertson had expressly declined to buy upon notice from the defendant and upon her offer still to sell to him before closing with Ehlers. Upon the plainest principles of estoppel, Robertson could not thereafter as against the defendant insist that he was the real principal. East Haddam Bank v. Shailor, 20 Conn. 18; 31 Cyc. 1234. Yet the plaintiff claims that, because pursuant to the secret agreement between Ehlers and Robertson the property was immediately conveyed by Ehlers to Robertson, the defendant should be held liable for commissions as upon a sale by her to Robertson under the modified agreement.

The finding is clear that the plaintiff did not in fact procure Ehlers as a purchaser. The plaintiff in no way intervened so as to bring Ehlers' attention to the property. But the plaintiff claims that because he had been in negotiations with Robertson, and Robertson made the contract with Ehlers to buy, therefore the plaintiff was the procuring cause of Ehlers' purchase. The plaintiff had nothing to do with the sale in fact made, nor did he know of it until after the sale had been consummated. Neither the plaintiff nor Robertson introduced Ehlers to the defendant. Ehlers approached the defendant entirely as an original independent purchaser and secured his contract in that guise. The general rule is stated in 9 C.J. 614, in this way:

" The facts that a person with whom the broker unsuccessfully negotiated for a sale called the attention of another to the property, and that the other finally bought it, do not give the broker a right to a commission."

This rule is based upon the well-established distinction between what the books call the " causa causans" and the " causa sine qua non." The cases are numerous. We mention Burchell v. Gowrie & Blockhouse Collieries, 1910, A. C. 624; Quirie v. Wilson, 3 Dominion L. R. 826. In Gleason v. Nelson, 162 Mass. 245, 38 N.E. 497, it is said:

" Where there has been no direct communication between the broker and the purchaser, it must be shown affirmatively that the latter was induced to enter into the negotiations which resulted in the purchase through the means employed by the broker for that purpose."

We also cite Johnson v. Seidel, 150 Pa. 396, 24 A. 687; Baumgartl v. Hoyne, 54 Ill.App. 496. See, also, the citations in note 1d, 44 L.R.A. 321.

Perhaps we should here notice our own case of Lincoln v McClatchie, 36 Conn. 136. Here the broker had been engaged to sell. Burdick was looking for a house. His friend Goodwin, knowing this, and seeing the broker's advertisement, interviewed the broker and reported to Burdick, who requested Goodwin to examine the house and report to him. Goodwin did so, and Burdick then examined the house, negotiated directly with the owner and bought the property without any personal interview or dealing with the broker. Before his purchase, Burdick was informed by Goodwin that the broker had the property for sale. In the superior court, Judge Loomis decided for the defendant. On appeal this court held that the broker was entitled to his commission on the ground that on these facts the principle, " qui facit per alium, facit per se," applied, and that Burdick obtained his information from the plaintiff through Goodwin, who was in fact the messenger and agent of Burdick. The facts clearly warranted the assumption of such an agency. The felt necessity of invoking the doctrine of agency but confirms the general rule stated above. Butler v. Ouwelant, supra, is decided upon the theory that the defendant, with knowledge of what the plaintiff broker had done, combined with a third party in the attempt unjustly to deprive the plaintiff of his commission. There is nothing in the present case to suggest in the slightest degree that the defendant desired...