Rossum v. Wick, 9295

• Decision Date: 27 January 1953
• Docket Number: No. 9295,9295
• Citation: 56 N.W.2d 770,74 S.D. 554
• Parties: ROSSUM v. WICK.
• Court: South Dakota Supreme Court

Page 770

56 N.W.2d 770

74 S.D. 554

ROSSUM v. WICK.

No. 9295.

Supreme Court of South Dakota.

Jan. 27, 1953.

John C. Farrar, Rapid City, for defendant and appellant.

George A. Bangs and W. A. McCullen, Rapid City, for plaintiff and respondent.

ROBERTS, Presiding Judge.

This is an action to recover a broker's commission. The action was tried to the court sitting without a jury and resulted in a judgment in plaintiff's favor from which the defendant has appealed.

The court found in substance that defendant agreed to pay to plaintiff a commission of five per cent of the purchase price of certain real property owned by him in Rapid City if plaintiff procured a purchaser for the property subject to a five-year lease on the first floor and basement of the building thereon; that plaintiff found a purchaser, the First Federal Savings & Loan Association, ready, able and willing to purchase the property on the terms specified by defendant; that the prospective purchaser demanded that defendant furnish assurances 'That the purchaser could obtain possession at the end of the five year period' and 'That the building on said property did not encroach upon the adjoining lands not owned by the defendant'; and that a sale was not consummated because defendant refused to furnish these assurances which were within the purview of the brokerage agreement.

There is unanimous agreement that a broker in order to recover the compensation called for by his contract of employment must procure a person who is ready, able and willing to purchase on the terms proposed by his principal. Upon the production of such a purchaser, the refusal of the principal to complete the sale does not deprive the broker of his right to compensation. Ericson v. Ebsen, 52 S.D. 97, 216 N.W. 860, and cases cited. This is a phase of the fundamental rule that he who prevents a thing from being done may not take advantage of the non-performance which he has occasioned. Restatement, Contracts, Sec. 295.

November 4, 1950, defendant executed and delivered to plaintiff a rather brief memorandum listing the premises in question for sale 'for the sum of Fifty-eight Thousand Dollars, said property subject to lease for five years on the first floor and basement' and reciting therein that he would pay to plaintiff a commission of five per cent on the amount of the sale price. Defendant had leased the premises for a term of ten years commencing on November 1, 1945, with an option to extend the term for an additional five years from and after the expiration of the ten year term. The manner of exercising the option as expressed in the lease reads as follows: 'If the lessee elects to exercise his option, above mentioned, he shall give to the Lessor at least thirty (30) days written notice of his intention to exercise said option, which notice shall be given to the Lessor on or before the 1st day of October, 1950'. The lessee did not give notice on or before the day specified of his election to exercise the option and plaintiff was so informed at the time of the listing. It now appears that the lessee asserts the right to exercise the option by giving notice at least thirty days before the expiration of the original term claiming that 'October 1, 1955' was intended instead of 'October 1, 1950' in specifying the expiration date for the giving of notice and that he is entitled to a reformation of the lease.

Thereafter and during the term of the listing negotiations through the efforts of plaintiff took place between representives of the First Federal Savings & Loan Association and defendant. Defendant refused to agree to a condition contained in an agreement prepared and submitted by the prospective purchaser that vendor furnish 'written statements from tenants showing no claims to rights of tenancy extending beyond November 1, 1955'. This condition was never withdrawn. It is not necessary to recite and consider other conditions in the purported acceptance.

The general rule is that an acceptance must not change, add to or qualify the terms of the offer; otherwise there is no contract. Richards Trust Co. v. Beach, 17 S.D. 432, 97 N.W. 358; Phelan v. Neary, 22 S.D. 265, 117 N.W. 142; Jepsen v. Marohn, 22 S.D. 593, 119 N.W. 988, 21 L.R.A., N.S. 935; Watters v. Dancey, 23 S.D. 481, 122 N.W. 430; see also annotations in 149 A.L.R. 205 and 3 A.L.R.2d 256. 'A reply to an offer, though purporting to accept it, which adds qualifications or...