Robinson v. Kemmons Wilson Realty Co.

• Decision Date: 18 May 1956
• Citation: 293 S.W.2d 574,41 Tenn.App. 297
• Parties: Albert ROBINSON and Ola Robinson, Plaintiffs in Error, v. KEMMONS WILSON REALTY COMPANY (a Corporation), Defendant in Error. 41 Tenn.App. 297, 293 S.W.2d 574
• Court: Tennessee Court of Appeals

Page 574

293 S.W.2d 574

Albert ROBINSON and Ola Robinson, Plaintiffs in Error, v. KEMMONS WILSON REALTY COMPANY (a Corporation), Defendant in Error.

41 Tenn.App. 297, 293 S.W.2d 574

Court of Appeals of Tennessee, Western Section at Jackson.

May 18, 1956.

Certiorari Denied by Supreme Court Sept. 3, 1956.

Rehearing Denied by Supreme Court Oct. 5, 1956.

[41 TENNAPP 299] Graham Moore and Robert L. Dobbs, Memphis, for plaintiffs in error.

Martin & Tate and George E. Morrow, Memphis, for defendant in error.

[41 TENNAPP 300] BEJACH, Judge.

This cause involves a suit by Kemmons Wilson Realty Company, a corporation, against Albert Robinson and Ola Robinson, his wife, for a real estate commission claimed to have been earned through the activities of John Wade, an employee of plaintiff, in procuring a sale of defendants' residence at 3271 Barron Road, Memphis, Tennessee, to Mr. and Mrs. E. V. Fondren. The parties will be styled as in the lower court, plaintiff and defendants, or by their individual names.

The evidence is practically undisputed, the only difference between the testimony of John Wade, plaintiff's only witness, and that of the defendant Albert Robinson, being as to whether defendant Robinson reduced his price from $24,500 to $23,500 or to $23,000. Wade testified that the reduction was to $23,500, while Robinson testified that he reduced his price to $23,000. This difference of $500 is not particularly material, but we think the greater probability lies with the correctness of Robinson's memory on this figure, rather than with Wade's, and especially so in view of the method of reasoning by which Robinson arrived at the figure. Robinson testified that he had asked $24,500 for his property, had received an offer of $21,500, and that he was willing to reduce his figure $1,500 if Wade's prospect, Mr. E. V. Fondren, would increase his offering price by the same amount. In other words, he was willing to split the difference. The materiality of this figure lies, not in the amount of same, but in the fact that Robinson offered to accept $23,000 for his property, and to pay to plaintiff a commission for the sale, but refused to accept the offer of $21,500 out of which he would have to pay a commission. About three weeks after he refused this offer, the Robinsons did sell to Mr. and Mrs. Fondren for $21,500, which he assumed would be net to him.

[41 TENNAPP 301] A more complete statement of the facts established by the testimony of John Wade who was plaintiff's only witness, and from that of defendants Albert Robinson and Ola Robinson, and Edgar V. Fondren who testified on behalf of defendants, is as follows:

In July, 1954, the Kemmons Wilson Realty Company was given an exclusive agency by defendants Albert Robinson and Ola Robinson for the sale of their home at 3271 Barron Road, Memphis, Tennessee, in order to enable the Robinsons to purchase a home from Kemmons Wilson Realty Company if their home on Barron Road could be sold. This deal did not materialize, however, and the sole agency contract was terminated. It is conceded by plaintiff that its right to the commission claimed in the instant case is not affected by this sole agency contract, but rests entirely upon the subsequent introduction of Mr. and Mrs. Fondren as a prospective purchaser by Mr. Wade. The sole agency terminated in August, 1954. Thereafter, about the 28th or 29th of October, 1954 when Mr. Wade, one of plaintiff's salesmen, learned that Mr. E. V. Fondren was interested in the purchase of a house in the area where Mr. Robinson's home was located, he called Mr. Robinson at his business address in West Memphis, Arkansas, and asked if he wanted to sell his house. To this inquiry Mr. Robinson replied that he would sell it for $24,500. This was the same price at which the house had been listed under the sole agency agreement. Permission was given to take Mr. and Mrs. Fondren out to the house and show it to them, but only at and for the selling price of $24,500. Mr. Wade did take Mr. and Mrs. Fondren out to the Robinson home and showed it to them, having been admitted by Mr. and Mrs. Robinson's children. Mrs. Robinson returned [41 TENNAPP 302] home from work while the Fondrens and Mr. Wade were still at the Barron Road home. As a result of this showing, Mr. Fondren offered $20,000 for the home, which Mr. Robinson refused. This offer was subsequently raised to $21,500,--whereupon, Mr. Robinson lowered his price to $23,000 and offered to take that sum and pay a commission out of it.

After three days of negotiation conducted through Wade, Mr. Robinson told Wade not to return again with a $21,500 offer, and to 'Forget the deal'.

About three weeks later, Mr. Fondren reopened negotiations by calling Mrs. Robinson and asking if she would not change her mind about selling her home, she having stated in connection with the previous negotiations that she did not wish to sell the home at all. As a result of this call by Mr. Fondren, the parties got together and the Robinsons did agree to and did sell to the Fondrens their home at 3271 Barron Road, Memphis, Tennessee, for the sum of $21,500.

Demand was made by Kemmons Wilson Realty Company for a commission on this sale, which demand was refused. The present suit was thereupon instituted and tried in the Circuit Court of Shelby County before Hon. A. O. Holmes, Judge, without the intervention of a jury. At the end of the proof, the trial judge made the following finding of fact:

'I think that the efficient procuring cause of the sale from the Robinsons to the Fondrens on the 23rd of November, was the efforts of the witness, Mr. Wade, in bringing the parties together, and that the property was sold to the Fondrens, and that the reason it was sold to them for $21,500 instead of the first [41 TENNAPP 303] figure, was in the hope that somebody would not have to pay the commission.'

Judgment was entered in favor of plaintiff for the sum of $1,075, which represented 5% of the sale price of $21,500. After a motion for a new trial was overruled, an appeal in the nature of a writ of error was perfected to this Court.

Under the provisions of Section 27-303, Tenn.Code Ann. (10,622, Williams Code) this cause is before this Court for a hearing de novo on all questions of fact and of law, with the presumption of the correctness of the judgment of the trial court, unless the preponderance of the evidence is otherwise. In view of the fact, however, that there is no conflict in the evidence as to any material fact, we think the questions presented to this Court by the appeal are entirely questions of law. Ward v. Southern R. Co., 15 Tenn.App. 380; Tennessee Electric Power Co. v. Van Dodson, 14 Tenn.App. 54; Stafford v. Consolidated Bus Lines, 179 Tenn. 185, 164 S.W.2d 15; Mayor and Aldermen of City of Knoxville v. Cain, 128 Tenn. 250, 159 S.W. 1084, 48 L.R.A.,N.S., 628; Southeastern Greyhound Lines v. Smith, 23 Tenn.App. 627, 136 S.W.2d 727; Hill v. Castner Knott Dry Goods Co., 25 Tenn.App. 230, 166 S.W.2d 638; Schindler v. Southern Coach Lines, 188 Tenn. 169, 217 S.W.2d 775; Sing v. Headrick, 34 Tenn.App. 187, 236 S.W.2d 95; Little v. Nashville C. & St. L. Ry. Co., Tenn.App., 281 S.W.2d 284, 293.

In our opinion, this cause turns almost entirely on whether or not negotiations between defendants and the Fondrens, after the introduction of the Fondrens by Wade, were broken off in good faith, and, therefore, whether or not the sale was the result of new and independent[41 TENNAPP 304] negotiations. Counsel for plaintiff concedes the absence of bad faith on the part of Mr. and Mrs. Robinson. He plants his case upon the proposition that the bringing together of the Robinsons and the Fondrens by Mr. Wade was the efficient procuring cause of the sale; and he maintains that it is unnecessary for the plaintiff to show as a part of its case that there was any bad faith, fraud, sharp practice, overreaching, or attempt to overreach the plaintiff in order to sustain a recovery. On the other hand, it is conceded by defendants that they had never heard of the Fondrens until they were introduced by Mr. Wade, and that, but for this introduction, they would never have had any contact with nor opportunity for sale of their house to the Fondrens. They contend, however, that since the plaintiff did not effect a sale of their property on the terms authorized and within the time that plaintiff was authorized to negotiate for such sale, that they, defendants, had a perfect right to make an independent deal with the Fondrens without becoming liable for any commission to plaintiff.

We deem it unnecessary to refer to cases outside of Tennessee. There are a number of such cases in Tennessee involving suits for real estate commissions, and it is the opinion of this Court that in those cases where the recovery of a commission was awarded to the real estate broker, such recovery was based either on the express terms of the contract with the broker, or resulted from some element of bad faith, sharp practice, fraud, or attempt to overreach the broker.

Plaintiff's counsel in his brief cites and relies on Arrington v. Cary, 64 Tenn. 609; Gilbert v. Smith, 14 Tenn.App. 500; Glascock v. Vanfleet, 100 Tenn. 603, 46 S.W. 49; Nance v. Smyth, 118 Tenn. 349, 99 S.W. 698; Peavy [41 TENNAPP 305] v. Walker, Tenn.App., 284 S.W.2d 1; Pyles v. Cole, 34 Tenn.App. 601, 241 S.W.2d 841; Royster v. Mageveney, 77 Tenn. 149; Newman v. Hill, 29 Tenn.App. 388, 196 S.W.2d 1008, and the unreported decision of our Supreme Court in the case of Marx and Bensdorf v. Hall (opinion filed January 15, 1938). Many of these cases are also cited and relied on by counsel for defendants, and most of them are cited in the unreported opinion of the Supreme Court in the case of Marx and Bensdorf v. Hall,--further reference to which opinion will be made.

In the case of Arrington v. Cary, 64 Tenn. 609, Cary, the owner of the property involved, had listed same for sale with Arrington...