Roy v. Huard

• Decision Date: 05 October 1961
• Citation: 157 Me. 477,174 A.2d 41
• Parties: Joseph A. ROY v. Joseph P. HUARD.
• Court: Maine Supreme Court

Page 41

174 A.2d 41

157 Me. 477

Joseph A. ROY v. Joseph P. HUARD.

Supreme Judicial Court of Maine.

Oct. 5, 1961.

Lester T. Jolovitz, Waterville, for plaintiff.

Jerome G. Daviau, Waterville, for defendant.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, SULLIVAN, DUBORD and SIDDALL, JJ.

WEBBER, Justice.

In this case both plaintiff and defendant appeal from a judgment, the plaintiff on the ground that damages fixed by the jury were inadequate, and the defendant because as he avers he has incurred no liability to plaintiff. The essential facts are not in dispute and may be briefly stated.

Plaintiff, a real estate broker, was authorized in writing by the defendant to undertake the sale of the latter's home for an agreed commission of five per cent of the sale price 'whether or not the sale price is the original asking price.' The asking price agreed upon was $14,700. The agreement executed by the defendant further provided: 'The owner or seller hereby agrees and promises to execute a warranty deed of the above listed property if the sale is made in accordance with this contract of sale or any alteration hereof mutually agreed upon.' Under well established principles of law the plaintiff could satisfy this contract and earn his commission by producing a customer who was and remained ready, willing and able to purchase the property upon the exact terms offered by the defendant or upon modified terms satisfactory to and accepted by the defendant. In due course the plaintiff produced customers who offered $14,500 for the house. This offer was accepted by the defendant and thereupon a written contract of sale was executed by the defendant and the proposed purchasers. When the time arrived for consummation of the sale by execution and delivery of a proper deed, the defendant declined to perform his contract and informed the plaintiff that the former's wife, owner of an interest as joint tenant, refused to convey her interest. No sale thereafter resulted.

Without objection on the part of the plaintiff, the defendant was permitted to inject into the case the erroneous theory that if the plaintiff knew at the beginning of his dealings with the defendant that the wife had an interest, he had the burden of proving himself free of negligence in not obtaining the wife's consent to his listing and the subsequent contract of purchase. This additional burden of proof was incorporated into the charge to the jury and was successfully carried by the plaintiff as evidenced by a verdict in his favor. The verdict, however, was for $144 when it is apparent that the only verdict possible in this case was one for $725.

The issue as to whether or not a broker is entitled to commission when the sale to his customer is prevented by the refusal of the wife of the principal to join in a conveyance appears to be one of novel impression in this state. The point has, however, been considered many times in other jurisdictions. The rule which we deem to be the better reasoned and which finds support in the great majority of cases bearing on the point would not deny the broker his commission even though he knew when he contracted with the husband that the joinder of the wife in a later conveyance would be necessary to perfect a sale. It must be borne in mind that the contract of hire is only between husband and broker. There is no attempt to charge the wife with liability for any portion of the commission and therefore no necessity to prove that her husband acted as her agent in the employment of the broker. What is really involved is the right of the broker to proceed with his contract on the assumption that the principal will be able to make his title good and procure his wife's joinder when the sale occurs. If this assumption is reasonable, the broker has no duty to approach the wife for her consent. As was stated in Campbell v. Arthur H. Campbell & Co., 1927, 155 Tenn. 515, 296 S.W. 9:

'This is rather a case in which there has been a default in performance on the part of the seller. In our opinion, when the husband assumes to have authority to offer for sale land owned by himself and wife, this amounts to a representation that he has such authority. If under such circumstances, the husband employs a real estate broker to bring about a sale of the land, and the broker procures a purchaser for the land, we think, as against the husband, the broker is entitled to his commission. Such right of the broker against the husband cannot be defeated by the refusal of the wife to join in a conveyance. We think that in the great majority of cases the husband attends to the business for the family, and we think the broker has a right to rely on the husband's assumption of authority and his implied representation that the wife will join in the necessary title papers. A like conclusion has been reached in all the decisions which we have examined.'

Reaching the same result, the court in Hamlin v. Schulte, 1886, 34 Minn. 534, 537, 27 N.W. 301, reasoned that any other result would permit the principal not only to disappoint the purchaser but to deprive the broker of his compensation, fairly earned, through collusion with the wife or because of the husband's inability to persuade her to join in the conveyance. In Staley v. Hufford, 1906, 73 Kan. 686, 85 P. 763, the court viewed the inability of the principal to persuade his wife to join as presenting a situation in which, as a matter of law, the consummation of the sale is prevented by the fault of the principal. For like reasons the same result was reached in Mackenzie v. Standenmayer, 1921, 175 Wis. 373, 185 N.W. 286; Tebo v. Mitchell, Del.Sup.1905, 5 Pennewill 356, 63 A. 327; Rick v. Moyer, 1929, 296 Pa. 176, 145 A. 793; Aler v. Plowman, 1948, 190 Md. 631, 59 A.2d 196; Max Broock, Inc. v. Walker, 1957, 349 Mich. 63, 84 N.W.2d 336; Weltman's, Inc. v. Friedman, D.C.1952, 102 F.Supp. 485; Price v. Francis, 1945, 184 Va. 484, 35 S.E.2d 823; See Annotation 156 A.L.R. 1398.

The California court stated the rule in these terms: 'Indeed, it is the general rule that the refusal of the wife of the owner to join in the conveyance of the property to the proposed vendee does not, itself, in a case of this character, operate to deprive the broker of his right to compensation.' Russell v. Ramm, 1927, 200 Cal. 348, 254 P. 532, 539. Followed in ...