Smith v. Fidelity & Columbia Trust Co.

• Decision Date: 21 December 1928
• Citation: 227 Ky. 120
• Parties: Smith v. Fidelity & Columbia Trust Company.
• Court: United States State Supreme Court — District of Kentucky

227 Ky. 120

Smith v. Fidelity & Columbia Trust Company.

Court of Appeals of Kentucky. Common Pleas Branch, Fourth Division.

Decided December 21, 1928.

1. Brokers. — It is broker's duty to exert his best efforts and exercise his best judgment for principal's benefit.

2. Brokers. — It is broker's duty to advise his principal fully of all facts within his knowledge reasonably calculated to affect principal's judgment.

3. Brokers. — It is broker's duty to possess and employ that degree of skill usually possessed and exercised by persons in his calling.

4. Brokers. — A broker, with whom property had been listed for sale for $30,000, held not negligent in advising principal to offer property to prospective customer at $27,500, without seeking a higher offer from one who had offered $26,000 and subsequently claimed he would have paid $30,000.

5. Appeal and Error. — Complaint respecting rulings as to the introduction of evidence need not be considered on appeal, where the result would be the same in any event.

6. Appeal and Error. — Where plaintiff appellant had no cause of action or right to go to the jury in any event, errors in the instructions were harmless.

Appeal from Jefferson Circuit Court

DAVID R. CASTLEMAN for appellant.

TRABUE, DOOLAN, HELM & HELM for appellee.

OPINION OF THE COURT BY JUDGE WILLIS.

Affirming.

This is a customer's action to recover damages from his real estate broker for alleged negligence in conducting negotiations and concluding a sale. Milton Smith Jr., was the owner of a handsome home located in the city of Louisville. He employed the Fidelity & Columbia Trust Company to negotiate a sale of it, and agreed to pay the customary commission for the service. The price suggested by Smith to be asked for the property was $30,000. Efforts to effect a sale at that price were unsuccessful, although extended over a period of several months. The property had been viewed by numerous prospective purchasers, but no one had submitted an offer. Finally, on July 6, 1925, P.C. Doerhoefer made a written offer of $22,500 for the place, but that offer was not accepted. Two days later Gilmore Ouerbacker submitted a bid of $25,000. When Doerhoefer was advised of the bid of Ouerbacker, he increased his own offer to $26,000. Ouerbacker was informed of the fact, and advised the broker that he would not bid against anybody for a piece of property, but would consider a counter offer from the owner. A consultation was held by Smith and his broker, the situation was carefully considered, and it was agreed that a counter proposition of $27,000 for the property should be submited to Ouerbacker. Yet Smith did not act solely upon the advice of the broker. He took the suggestion under advisement, and declined to decide definitely his course of action until he had discussed the matter with his wife. He did decide, however, after seeing Mrs. Smith, to make the counter offer, and it resulted in an immediate sale. Smith concluded the transaction with Ouerbacker, and paid the agreed commission to his broker.

The present action by Smith was filed a month later, seeking to recover damages in the sum of $2,500. The cause of action stated in the petition was rested upon a charge of negligence on the part of the defendant in advising a sale of the property at the price of $27,500, without giving Doerhoefer the opportunity to bid a higher price, when he was ready, able, and willing to pay $30,000 for the property. The answer of defendant denied the allegations of negligence, and in a second paragraph set forth affirmatively its version of the transaction. A reply completed the isues, and a jury trial resulted in a verdict for the defendant. Plaintiff demanded, but was denied, a new trial, and has prosecuted the present appeal.

The appellant complains that error to his prejudice was committed by the trial court in the admission and exclusion of evidence, and in giving and refusing instructions to the jury.

The action sounds in tort, and is predicated upon a charge of negligence by the broker in the discharge of its duties in negotiating and advising a sale of the property at $27,500. The particular breach of duty alleged in the petition is the failure of the broker to give Doerhoefer an opportunity to bid $30,000 for the property, when he was ready, able, and willing to do so. It is the duty of a broker to exert his best efforts and to exercise his best judgment for the benefit of his principal. Like any other agent for pay, it is the broker's duty to advise his principal fully of all the facts within his knowledge affecting the matter in hand reasonably calculated to influence his judgment, and to make an honest and diligent effort to accomplish the purpose of the agency. The broker is likewise under a duty to possess and employ that degree of skill in the business that is usually possessed and exercised by persons professing that particular calling. 9 C. J. p. 535; 2 C.J. pp. 692, 714, and 720; 4 R.C.L. p. 269, sec. 19; Shatz Realty Co. v. King, 225 Ky. 846, 10 S.W. (2d) 456; Carter v. Owens, 58 Fla. 204, 50 So. 641, 25 L. R.A. (N.S.) 736; Milliken v. Woodward, 64 N.J. Law, 444, 45 A. 796. Cf. Siegel v. Rosenzweig, 129 App. Div. 547, 114 N.Y.S. 179.

It is...