Skermetti Realty Co. v. Devitt

• Decision Date: 07 February 1927
• Docket Number: 26245
• Citation: 111 So. 302,145 Miss. 815
• Court: Mississippi Supreme Court
• Parties: SKERMETTI REALTY CO. v. DEVITT et al. [*]

111 So. 302

145 Miss. 815

SKERMETTI REALTY CO. v. DEVITT et al. ^[*]

No. 26245

Supreme Court of Mississippi

February 7, 1927

Division A

. (Division A.)

1 BROKERS. Amended declaration in broker's suit for commission, alleging employment and finding purchaser on specified terms, held to state good cause of action.

Amended declaration in broker's suit for commission, alleging employment to sell property for specified price with certain sum in cash and balance secured by mortgage, according to deferred payments to be fixed by purchaser within time limit of ten years, and alleging securing of purchaser ready willing, and able to make cash payment, and to execute note for balance payable in equal installments in one, two, three, four, and five years, held to state a good cause of action.

2. BROKERS. Broker is entitled to commission under contract specifying terms of sale when he produces purchaser ready, willing, and able to buy. Where contract between broker and principal specifies terms on which land is to be sold, the broker performs his duty and is entitled to commission on producing purchaser ready and willing to buy on specified terms.

3. BROKERS. Broker's duty under contract, not specifying terms of sale, is not performed until he produces purchaser to whom principal sells.

Where contract between broker and principal does not specify terms of sale and actual sale is to be made by principal, broker's duty is not performed until he produces purchaser to whom principal sells.

4. BROKERS. Oral contract between broker and owner of land authorizing sale is not within statute of frauds.

An oral contract between a broker and owner of land autorizing sale of land is not within statute of frauds in reference to oral agreements for sale of interests in land, and broker's right to commission thereunder is not affected.

HON. W. A. WHITE, Judge.

APPEAL from circuit court of Harrison county, HON. W. A. WHITE, Judge.

Suit by the Skermetti Realty Company against T. K. Devitt and another. Judgment dismissing the suit, and complainant appeals. Reversed and remanded.

Judgment reversed and cause remanded.

Mize & Mize, for appellant.

The lower court went off on the theory that there was no contract sufficiently definite between appellant and appellees to give them a cause of action, and that since terms of the deferred payments were not specifically agreed upon, the contract between appellant and appellees was void. In this the court was in error. Smith v. Keeler, 151 Ill. 518, 38 N.E. 250; Tinsley v. Durfey, 99 Ill.App. 239.

Of course, where the owner fixes all of the terms, an agent or broker is not entitled to his commission unless he finds a purchaser willing to buy on these terms, but in the instant case appellant did find a purchaser, willing, ready, and able to buy on the terms authorized by the appellee.

The declaration alleges that the appellees arbitrarily and without any cause refused to convey to their purchaser and the appellees cannot defeat appellant's right to the compensation by refusing to sell to appellant's customer. 9 C. J., pages 597 and 623.

Ford, White, Graham & Gautier, for appellees.

The agreement was incomplete even though it be in writing, although it is enforcible because it is not in writing. As to the necessity of writing, see Kozel v. Dearlove, 144 Lill. 23. As to the necessity of the terms being definite, and the limits of the agent's rights, see Anderson v. Howard, 155 N.W. 261; and Stengel v. Sargent, 74 N.J.Eq. 20.

The general rule is that a real estate broker is entitled to the agreed commission when he brings a purchaser able, ready, and willing to buy, if the terms of sale are definite and agreed upon. On the other hand, he is not entitled to a commission where the terms on which he made sale are indefinite, unless a sale is actually made. Roell v. Offutt, v38 Miss. 598; Cook v. Smith, 119 Miss. 375; Jenny v. Smith Powell Realty Co., 125 Miss. 608; Johnson v. Sutton, 94 Miss. 544.

Under these authorities the case clearly should be affirmed, because it is not claimed that any sale was made, and the terms on which the agent might sell were certainly not fixed in the sales agency agreement.

OPINION

COOK, J.

In the circuit court of Harrison county the appellant instituted this suit against the appellees for the recovery of three thousand seven hundred fifty dollars, a commission claimed to be due it by the appellees under a contract whereby it was employed to sell certain land and property belonging to the appellees and situated in the city of Biloxi, Miss. A demurrer was sustained to the original declaration, and thereupon an amended declaration was filed. A demurrer to this amended declaration was likewise sustained, and, the appellant having declined to plead further, the suit was dismissed, and this appeal prosecuted.

The declaration, as amended, alleged that the appellees were the owners of property therein particularly described, and on the 11th day of September, 1925, they employed Paul Skermetti, who is a real estate broker operating under the name of Skermetti Realty Company, to sell said property at and for the sum of seventy-five thousand dollars, on the following terms: ten thousand dollars of said sum to be paid in cash, and the balance to be secured by a mortgage on said property, and to bear interest at the rate of six per cent. per annum from the date of sale until paid, the amounts and maturities of the deferred payments to be fixed to suit the purchaser, within a time limit of not exceeding ten years; that the appellees authorized the appellant to negotiate a sale of said property on these terms and to fix the time within which the deferred payments should mature, and for his services agreed to pay him five per cent. of said sum of seventy-five thousand dollars as commission.

The declaration further averred that on or about the 20th day of October, 1925, while he still had authority to sell said property on the terms aforesaid, he found a purchaser who was ready, willing, and able to purchase said property, at and for the sum of seventy-five thousand dollars, and to pay ten thousand dollars in cash, and the balance in equal installments in one, two, three, four and five years from the...