Snider v. New River Ins., Etc., Corp., Record No. 3325.

• Decision Date: 26 April 1948
• Docket Number: Record No. 3325.
• Citation: 187 Va. 548
• Court: Virginia Supreme Court
• Parties: RAY H. SNIDER v. NEW RIVER INSURANCE & REALTY CORPORATION.

Page 548

187 Va. 548

RAY H. SNIDER v. NEW RIVER INSURANCE & REALTY CORPORATION.

Record No. 3325.

Supreme Court of Virginia, Richmond.

April 26, 1948.

Present, Hudgins, C.J., and Gregory, Eggleston, Spratley, Staples and Miller, JJ.

1. BROKERS — Compensation — Contract to Sell — Verbal Offer Not Sufficient. — A broker employed to sell, as distinguished from a broker employed to find a purchaser ready, willing and able to buy is not entitled to compensation until he effects a sale or procures from his customer a valid and enforceable contract of sale. The procurement of a verbal offer or agreement to purchase is not sufficient.

2. BROKERS — Compensation — Contract to Sell — Case at Bar. — In the instant case, an action to recover broker's commissions on the sale of land, the undertaking of the broker by contract with the owner was to sell the property within the listing period at a stipulated price and upon specified terms, and not merely to procure within that time a purchaser who was ready, willing and able to buy at that price and upon those terms. The evidence on behalf of the broker showed that he entered into a verbal contract with a prospective purchaser but that the purchaser executed no written offer or contract binding him to purchase the property and after the expiration of the listing period the owner agreed to sell the property to another party and declined to consummate the sale to the broker's prospect.

Held: That since the undisputed evidence was that the broker had not performed his undertaking by selling the property he was not entitled to the commission claimed.

3. BROKERS — Commission — Contract to Sell — Time of Raising Objection to Fact that Verbal Contract Alone Was Made — Case at Bar. — In the instant case, an action to recover broker's commissions on the sale of land, the undertaking of the broker by contract with the owner was to sell the property within the listing period at a stipulated price and upon specified terms, and not merely to procure within that time a purchaser who was ready, willing and able to buy at that price and upon those terms. The evidence on behalf of the broker showed that he entered into a verbal contract with a prospective purchaser but that the purchaser executed no written offer or contract binding him to purchase the property and after the expiration of the listing period the owner agreed to sell the property to another party and declined to consummate the sale to the broker's prospect. The contention was made that the defendant, seller, was precluded by Rule 22 of the Supreme Court of Appeals from relying upon the defense that the broker procured from the prospective purchaser a mere verbal contract to buy the property, because the point was not made in the court below that such a contract was unenforceable under the statute of frauds.

Held: That there was no merit in the contention since the defendant was not raising the question of the statute of frauds in the Supreme Court of Appeals but was relying upon the defense that the evidence of the plaintiff broker was fatally insufficient in that it failed to show that the broker had effected a sale of the property by procuring a written enforceable contract signed by the prospective purchaser.

Error to a judgment of the Circuit Court of Giles county. Hon. Vincent L. Sexton, Jr., judge presiding.

The opinion states the case.

W. B. Snidow, for the plaintiff in error.

J. Livingstone Dillow and A. M. Harman, Jr., for the defendant in error.

EGGLESTON, J., delivered the opinion of the court.

New River Insurance & Realty Corporation, a real-estate broker, filed a suit against Ray H. Snider to recover the sum of $500 for commissions, claimed to be due under the terms of a written contract, for effecting a sale of certain real estate owned by the defendant, Snider, in the town of Pearisburg, Virginia. The trial below resulted in a verdict and judgment in favor of the plaintiff broker for the amount claimed and the matter is before us on a writ of error granted the defendant property owner.

The principal contention, and the only one which we need consider, is that the evidence is insufficient to sustain the verdict and judgment complained of. For convenience we shall refer to the parties as they appeared in the court below.

The contract between the owner and the broker reads thus:

"In consideration of the services of New River Insurance & Realty Corp., hereinafter called the Agent, to be rendered, I hereby list with said agent, exclusively and irrevocably, until the 29 day of December, 1946, at six o'clock P.M., the following described property, situate in the Mt. View Addition, of Pearisburg, in the State of Virginia, to wit:

"4 Room Dwelling on West Side Giles St., Lot #3, and I hereby give and grant said agent the exclusive and irrevocable right to sell the same within said time for Five thousand & 00/100 Dollars, on the following terms, to wit: Cash. Or on any other terms to which I may agree, and also to accept a deposit on account of the purchase price thereof.

"I agree to pay said agent as commission per cent. of the selling price in cash.

"In the event a sale is made, I hereby agree to convey said property to the purchaser, free from all encumbrances, unless otherwise mentioned herein, with a good and sufficient General Warranty Deed.

"In the event a sale is made within thirty days after the time limit above mentioned has expired, to purchaser or purchasers with whom said agent negotiated during the life of this agreement, and said agent notifies me personally, or in writing of such negotiation, within five days after the expiration of the time limit herein mentioned, I agree to pay the said agent the commission herein above provided.

"In case a deposit is forfeited, the same shall go to the said agent as commission, provided, however, that the same shall not exceed the amount of the above named commission, and in the event the same does exceed the above named commission, the said agent shall be entitled to his full commision, and the balance shall be paid over to me.

"In consideration of the above listing the said agent hereby agrees to use due diligence in securing a purchaser for the said property.

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