Snider v. New River Ins. & Realty Corp.

• Decision Date: 26 April 1948
• Citation: 47 S.E.2d 298,187 Va. 548
• Court: Virginia Supreme Court
• Parties: SNIDER. v. NEW RIVER INS. & REALTY CORPORATION.

47 S.E.2d 298

187 Va. 548

SNIDER.

v.NEW RIVER INS. & REALTY CORPORATION.

Supreme Court of Appeals of Virginia.

April 26, 1948.

[47 S.E.2d 399]

Error to Circuit Court, Giles County; Vincent L. Sexton, Jr., Judge.

Suit by New River Insurance & Realty Corporation against Ray H. Snider to recover real estate broker's commissions. To review a judgment for plaintiff, defendant brings error.

Judgment reversed and final judgment entered in favor of defendant.

Before HUDGINS, C. J, and GREGORY, EGGLESTON, SPRATLEY, STAPLES and MILLER, JJ.

W. B. Snidow, of Pearisburg, for plaintiff in error.

J. Livingstone Dillow, of Narrows, and A. M. Harman, Jr., of Pulaski, for defendant in error.

EGGLESTON, Justice.

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

[47 S.E.2d 400]

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 commission, 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.

"Witness the following signatures and seals, this 29 day of November, 1946.

"Ray H. Snider (Seal)"

The evidence on behalf of the plaintiff broker tended to show that on December 28, 1946, it entered into a verbal contract with George Link whereby the latter agreed to purchase the property at $5500 cash; that Link had filed an application with a local bank for a loan of $5500, to be secured by a deed of trust on the property; that the bank had approved the loan; that Link intended to use the proceeds of this loan to pay for the property; and that he was desirous of consummating the transaction.

Link, the proposed purchaser, executed no written offer or contract binding him to purchase the property, nor did he tender or pay to the broker, or to Snider, the purchase price or any portion thereof.

On December 31, 1946, or on the day following, a representative of the broker notified Snider by telephone, at the latter's residence in Craig county, that the property had been "sold" in this manner to Link for $5500 cash, and demanded a deed from Snider to the purchaser. Snider replied that after the expiration, on December 29, of the exclusive listing period which he had given to the broker, he (Snider) had agreed to sell the property to another party. Hence, Snider declined to consummate the sale to Link.

As indicated by the instructions granted and refused, the trial court took the view that under the terms of the contract between the property owner and the broker, if the latter, within thirty days of the date of the contract, procured a purchaser who was ready, willing and able to buy the property at the sum of $5,000 (sic), and that Snider refused to consummate the transaction and sold the property to another, then the broker had earned and was entitled to recover the commission sued for. In our opinion this view is erroneous.

As we said in Richeson v. Wilson, Va, 47 S.E.2d 393, decided at the present term: ...