Swinebroad v. Foster

• Decision Date: 14 November 1922
• Citation: 244 S.W. 881,196 Ky. 459
• Parties: SWINEBROAD ET AL. v. FOSTER ET AL.
• Court: Kentucky Court of Appeals

244 S.W. 881

196 Ky. 459

SWINEBROAD ET AL. v. FOSTER ET AL.

Court of Appeals of Kentucky.

November 14, 1922

Appeal from Circuit Court, Garrard County.

Action by G. B. Swinebroad and another against Hays Foster and others. Judgment for plaintiffs for an insufficient amount and they pray for an appeal. Appeal granted, judgment reversed, and cause remanded.

L. L Walker, of Lancaster, for appellants.

K. S Alcorn, of Stanford, and J. E. Robinson, of Lancaster, for appellees.

CLAY J.

Hays Foster, J. W. Rochester, and K. S. Alcorn, who owned a farm and some town lots, employed G. B. Swinebroad and W. E. Moss real estate agents, to sell the property at public auction and agreed to pay them a commission of 5 per cent. if there was a sale, but only $250 if no sale was made. The property was cried at public auction on February 11, 1919, and James Stringer became the purchaser of the farm at the price of $8,500, and the town lots at the price of $2,125. On the same day the owners entered into a contract with Stringer, by which he was to pay $100 in cash and $1,700 on the delivery of the deed, which was to take place on February 24th, and to execute his five notes for the remainder of the purchase price, extending over a period of five years. Before the sale took place, the owners inquired of Stringer as to his financial condition, and he told them that he had contracted to sell his home for $1,500 and had about $2,000 worth of tobacco and could easily take care of the initial payment of $1,800, and the terms of sale were made less burdensome, in order to meet his convenience. A day or two later, the parties entered into a new contract, by which Stringer was relieved of the obligation to take the town lots but was required to pay $8,500 for the farm. Thereafter a controversy arose between the parties respecting the trade, Stringer claiming that there was an alley which his contract did not call for, and the owners claiming that he would not comply with his contract because he was insolvent. Thereupon the parties entered into a new contract, by which Stringer paid the owners $300, in full settlement of their claim for damages arising out of his refusal to execute the contract of sale.

Having declined to pay the full commission of 5 per cent., Swinebroad and Moss sued the owners to recover that amount. At the conclusion of the evidence, the court instructed the jury as follows:

"You will find for the plaintiffs the sum of $531.25, with interest from February 11, 1919, unless you believe that the

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