Shadwick v. Smith

• Decision Date: 27 February 1912
• Citation: 143 S.W. 1027,147 Ky. 159
• Parties: SHADWICK v. SMITH.
• Court: Kentucky Court of Appeals

143 S.W. 1027

147 Ky. 159

SHADWICK v. SMITH.

Court of Appeals of Kentucky.

February 27, 1912

Appeal from Circuit Court, Hickman County.

Action by J. Kelly Smith against R. C. Shadwick. From a judgment for plaintiff, defendant appeals. Affirmed.

R. B Flatt, for appellant.

Bennett Robbins & Thomas and J. Kelly Smith, for appellee.

HOBSON C.J.

J Kelly Smith brought this suit against R. C. Shadwick to recover commissions alleged to be due him for procuring a purchaser for a tract of land owned by Shadwick. The facts of the case are these: On January 10, 1910, Shadwick signed a writing, which he delivered to Smith, by which he put the land in his hands for sale "for a period of six months from date, and thereafter until written notice is given of the cancellation of this agreement." The writing also contained these conditions: "The sale price to be $3,000 or over. Terms of sale, $1,000 cash and balance moderate terms, 6 per cent." The commissions of the agent are thus expressed: "In case of sale, an amount equal to 5 per cent. of the sale price, or all over $2,850, at the option of the agent." Smith was about to sell the land to Floyd Chambers for $3,450, and Shadwick was reluctant to make a deed, so it was agreed between Smith and Shadwick that Smith was only to receive $200 for his commission and Shadwick $3,250 of the purchase money. After this had been agreed to Chambers was unable to get up the cash payment of $1,000, and when they met to close the trade on December 31st Smith says that Shadwick then agreed to give him two weeks longer to get up the money and close the trade. Shadwick says he agreed to give him ten days longer. At the end of ten days Shadwick wrote Smith that he took the land out of his hands. Within the two weeks Smith got the money up, put it in bank, and called on Shadwick to make the deed. This Shadwick declined to do, and this suit followed. The court instructed the jury, in substance, that if the plaintiff and defendant had an agreement by which the plaintiff was to make a sale of the land within a certain time, and within that time the plaintiff procured a purchaser for the land, they should find for him; otherwise, they should find for the defendant. The jury found for the plaintiff, and, the court having entered judgment on the verdict and refused a new trial, the defendant appeals.

The suit was brought on the written contract. After the evidence was heard, the...