Stanley v. Grimes

• Decision Date: 19 May 1930
• Docket Number: 28564
• Citation: 128 So. 324,158 Miss. 1
• Court: Mississippi Supreme Court
• Parties: STANLEY v. GRIMES

128 So. 324

158 Miss. 1

STANLEY v. GRIMES

No. 28564

Supreme Court of Mississippi, Division B

May 19, 1930

Appeal from circuit court of Hinds county, First district.

(Division B.)

1 BROKERS. Real estate agent without special contract is not entitled to commission unless producing purchaser ready willing, and able to buy on terms named.

A real estate agent is not entitled to recover a commission from a real estate owner unless he produces a purchaser ready willing, and able to buy on the terms named by the owner unless there is a special contract to the contrary.

2. BROKERS. Real estate agent without exclusive sale right failing to produce buyer cannot recover commission, though owner subsequently sells to prospective purchaser.

Where an owner lists property with a real estate agent to be sold for a named sum, net to the owner, and such agent does not produce a buyer at a greater sum than the net sum named, such agent cannot recover a commission, although the owner subsequently sells to a person to whom the agent has shown the property, but who had refused to buy it, where there is no exclusive right, under the contract, in the agent to sell.

HON. W. H. POTTER, Judge.

HON. W. H. POTTER, Judge.

Suit by Mrs. C. R. Grimes against H. F. Stanley. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

Judgment reversed.

Robt. B. Ricketts, of Jackson, for appellant.

The appellee, Mrs. Grimes, was not employed by the appellant, Stanley, as a broker for the purpose of effecting a sale of his property. Neither was the Stanley property ever listed with her.

The fact that a broker approaches an owner of real estate, and asks of him the terms at which he is willing to sell the property and is informed thereof, is not in itself sufficient to show a contract of employment by the owner and consequent liability to pay a commission to the broker on his procuring a purchaser.

43 A. L. R. 848; Meyers v. Colman, 93 Miss. 226, 46 So. 249; Pierce v. Thomas, 4 E. D. Smith (N. Y.) 354; Holloman v. Lindsey, 70 So. 81, 110 Miss. 364.

The mere asking and receiving the price of property is not of itself sufficient to establish the employment of a broker, nor would the subsequent disposal of the property to one with whom the broker negotiated amount to a ratification of his acts.

4 R. C. L. (Brokers, Sec. 5) 248; 9 Corpus Juris 601-602.

There was no implied contract of employment between the appellant and the appellee.

The appellee did not perform her obligations under the express contract for the existence of which she contends.

When the contract between the broker and his principal expressly makes the payment of commissions dependent on the obtaining of a certain price for the property, the broker cannot recover, even though the owner sells at a less price to a person to whom the broker first shows the property unless the broker is prevented from making the sale by the fault of the principal.

43 A. L. R. 1100, Note on page 1111; Swain v. Pitts et al., 82 So. 305, 120 Miss. 578; Sullivan v. Turner et al., 82 So. 325, 120 Miss. 481; 4 R. C. L. (Brokers, sec. 55), page 317.

Green, Green & Potter, of Jackson, for appellee.

To create the relation of broker and principal there must be a contract of employment, express or implied. No particular form is necessary for such employment, and ordinarily all that is necessary to show is that the broker acted with the consent of the principal.

9 C. J. 516.

The evidence was sufficient to sustain the finding of the jury that Mrs. Grimes was the procuring cause of the sale.

Assuming that appellee has convinced the court that there was a listing of the property, and in view of the verdict of the jury, there can be no question but that Mrs. Grimes brought to Stanley the name of the purchasers, her clients, and brought to the Heards the name of the owner, the case of Tupelo Hotel Co. v. Long, 126 So. 6, is directly in point.

OPINION

Ethridge, P. J.

Mrs. C. R. Grimes was plaintiff in the court below, and brought suit against H. F. Stanley for commissions upon sale of a piece of property in the city of Jackson by Stanley to Mrs. Heard and her daughters, alleging that plaintiff procured a purchaser, ready, able, and willing to buy the property at and for the sum of eleven thousand five hundred dollars; that the defendant, H. F. Stanley, had listed the property with her for eleven thousand five hundred dollars, and that she had interested purchasers in the property, and without the knowledge or consent of the defendant, sold the property to the prospective purchasers, for the sum of eleven thousand dollars; and that Stanley failed and refused to pay her the five per cent commission reasonable and customary in such cases, and demanded the sum of five hundred fifty dollars.

The defendant pleaded the general issue. At the conclusion of the evidence, the defendant asked for a peremptory instruction, which was refused. Also other instructions were refused, and complaint is made of several instructions given for the plaintiff.

We have carefully considered the evidence in the case, and have reached the conclusion that the plaintiff did not prove her case entitling her to recover a commission. She testified, in substance, that she had known Stanley for three or four years, and that shortly before the transaction involved, she had noticed that Stanley was building a residence at 2023 West Capitol Street; that the first time she passed there she knew it was Stanley's place, and that he had listed his apartment with her prior thereto, and that she asked him if he was building this house for sale or to live in, and he said: "I am...