Rosenfield v. Wall
| Decision Date | 05 March 1920 |
| Citation | 94 Conn. 418,109 A. 409 |
| Court | Connecticut Supreme Court |
| Parties | ROSENFIELD v. WALL et al. |
Appeal from City Court of Hartford; Herbert S. Bullard, Judge.
Action by Max Rosenfield, a real estate broker against James J. Wall and another, to recover the amount of his commission, brought to and tried by the city court of Hartford. Facts found and judgment rendered for the plaintiff for $326, and appeal by the defendant Wall. Error, and new trial ordered.
On March 5, 1918, defendant James J. Wall owned the premises known as 68-70 Pliny street, Hartford, and employed plaintiff, Max Rosenfield, as his agent to find a purchaser for this property.
Plaintiff in April and May, 1918, secured from Mrs. Brody successive offers, the last for $16,200, and submitted these to Wall who rejected all of them.
On June 15th, Mrs. Brody called to her assistance a broker named Pierson, and through him offered Wall $16,300 for the property, which offer Wall accepted, and the sale was subsequently consummated.
The customary commission for real estate brokers for the sale of real property is 2 per centum of the purchase price in the absence of an agreement for a specific compensation or a special custom in modifying it.
Wall was a real estate broker and paid Pierson $200 as compensation for his services in the sale of this property. Brokers frequently charge but one-half the usual commission when the vendor is a broker.
The trial court found that the plaintiff was the procuring cause of this sale and rendered judgment for plaintiff for $326 being 2 per cent. of the selling price of $16,300.
Joseph P. Tuttle and Henry J. Marks, both of Hartford, for appellant James J. Wall.
Albion B. Wilson, of Hartford, for appellee.
The essentials of an action-such as this-to recover a broker's commission for the sale of real estate are the employment of the broker by the owner to sell his real estate, upon certain named terms, and the procurement by the broker of a customer willing, ready, and able to purchase upon these terms. Abbott v. Lee, 86 Conn. 392, 85 A. 526; Home Banking & Realty Co. v. Baum, 85 Conn. 383, 387, 82 A. 970. The difficulty in supporting the judgment is that the facts found upon which the appeal must be determined do not disclose the cause of action of the complaint, nor indeed any cause of action.
One ground of error, and the only one which we shall discuss, is in the holding of the court that the plaintiff was the procuring cause of the sale.
Such a finding is to be regarded as one of fact and conclusive " unless contrary to or unsupported by the subordinate facts, or in conflict with the settled rules of logic and reason, or found in violation of some rule or principle of law." Seward v. Seward & Son Co., 91 Conn. 190, 193, 99 A. 887, 888.
The conclusion of the trial court that the plaintiff was the procuring cause of this sale rests on the allegation that he found a purchaser for the property, Mrs. Brody, and gave the defendant Wall the name and address of this purchaser, and subsequently, upward of two months later, Wall sold the property to Mrs. Brody for the purchase price of $16,300.
It is not alleged that this price was a part of the terms of sale, for which the plaintiff was employed to sell. It is not alleged that Mrs. Brody ever accepted these terms of sale, or was ever ready, willing, and able to buy on these terms. There is no express allegation and no facts from which could be inferred that the plaintiff was the procuring cause of the sale. What occurred between the time when the plaintiff found Mrs. Brody and June 20th which induced or may have induced Mrs. Brody to make this definite offer does not appear. How the defendant came to sell to Mrs. Brody does not appear.
From the mere fact that the plaintiff brought the purchase of this property to the attention of Mrs. Brody, and that over two months later she purchased it, does not of itself furnish a sufficient basis from which the inference must necessarily follow that the plaintiff was the procuring cause of the sale. The finding of facts does state that the plaintiff was the procuring cause of the sale, but this is not supported by the subordinate facts, and this conclusion is not consistent with the facts found.
The facts found do not show that the employment of the plaintiff covered the sale of this property upon any stated terms or for any stated price. They do not show that the plaintiff ever accepted any terms or price for which the plaintiff was authorized to effect the sale. They do not show that the plaintiff interested Mrs. Brody to the point that she accepted, or was ready to accept, the terms of sale which the plaintiff was authorized to make.
They merely show that during April and May the plaintiff secured from Mrs. Brody successive offers, the last one being $16,200, and submitted all of these offers to Wall and he rejected them; and that on or about the following June 15th Mrs. Brody called to her assistance another broker, and through him offered $16,300 for the property, which offer Wall accepted and subsequently consummated the sale.
The finding of a prospective purchaser is not the only service of the broker; a large part of his effort, perhaps the greater part, is in inducing, either the purchaser to meet the seller's terms and price, or the seller to make concessions in the terms to meet the purchaser's wishes.
In this case, so far as the finding discloses, Mrs. Brody did not purchase or offer to purchase upon terms satisfactory to the defendant as the result of the effort or service of the plaintiff. On the contrary, it is found that another broker at the instance of the purchaser induced the defendant to sell the property to Mrs. Brody for $100 more than Mrs. Brody had offered him through the plaintiff.
No question of bad faith on the part of the seller, or of Mrs. Brody, arises on the record.
The fact that the plaintiff first called Mrs. Brody's attention to this property is not of controlling significance. Who was the procuring cause of the sale is the controlling factor. And it may or may not be the one who first called the purchaser's attention to the purchase of the property.
If the prospective purchaser whom a broker introduces to the owner is not able, ready, and willing to buy on the owner's terms, or his decision is not reported to the owner, and thereafter another broker procures this same purchaser to accept the owner's terms or to make an offer which the owner accepts, the first broker is not entitled to recover a commission, since he cannot be said to be the procuring cause of the sale. The broker's services are not the test, but rather the success of his effort in effecting a sale or in producing a customer ready, able, and willing to buy on the owner's terms.
The employment of a broker without naming a price of sale...
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