T.W. Sandford & Co. v. Waring

• Court: Court of Appeals of Kentucky
• Writing for the Court: SETTLE, J.
• Citation: 256 S.W. 9,201 Ky. 169
• Decision Date: 27 November 1923
• Parties: T. W. SANDFORD & CO. v. WARING.

256 S.W. 9

201 Ky. 169

T. W. SANDFORD & CO.
v.
WARING.

Court of Appeals of Kentucky.

November 27, 1923

Appeal from Circuit Court, Campbell County.

Action by T. W. Sandford, a real estate broker doing business as T. W. Sandford & Co., against Robert C. Waring. Judgment for defendant, and plaintiff appeals. Reversed and remanded, with directions. [256 S.W. 10]

S.D. Rouse, of Covington, for appellant.

W. A. Burkamp, of Newport, for appellee.

SETTLE, J.

This action was brought in the court below by the appellant, Thomas W. Sandford, a real estate broker doing business as T. W. Sandford & Co., seeking to recover of the appellee, Robert C. Waring, $1,050, alleged to be owing him by the latter as agreed commission upon the sale of four lots of ground in the city of Covington, made for him, as further alleged by the appellant, to one George L. Hill, July 7, 1921. The appellee filed a general demurrer to the petition as amended, which the court sustained. The appellant excepted to this ruling, and refused to plead further. Whereupon the court entered judgment dismissing his petition, and from that judgment he has appealed.

It appears from the averments of the petition, as amended:

That on June 27, 1921, the appellee placed the lots in question in the hands of the appellant for sale in accordance with the terms of the following writing:

"June 27, 1921

I hereby place the property numbers 31, 33, 35, and 37, West Pike street, Covington, Ky. with T. W. Sandford & Co., for a period of thirty days from this date for sale exclusive for the sum of thirty five thousand ($35,000.00) dollars, and will pay said firm the regular commission for selling said property. No sale, no commission.

[Signed] Robert C. Waring."

That on July 7, 1921, and well within the 30 days' time allowed him by the above writing for making a sale of the real estate therein described, the appellant found and tendered to the appellee, in the person of George L. Hill, an admittedly responsible purchaser of the property, whose written acceptance as such purchaser of the offer and terms of its sale as contained in the written authorization from the appellee to the appellant and agreement to comply therewith was appended by him to that instrument in the following words:

"I accept the above proposition provided clear title is given.

July 7, 1921, [Signed] George L. Hill."

The writing and attached acceptance referred to, marked as an exhibit, was filed with and made a part of the petition.

It further substantially appears from other averments of the petition as amended that George L. Hill, purchaser of the real estate, immediately expressed to the appellee his ability and readiness to comply with his contract of purchase in accordance with its terms as set forth in the written authorization from the appellee to appellant, and his (Hill's) written acceptance of same, and offered to do so, which offer was accompanied by a request from him to the appellee that he consummate the contract by the execution and delivery to him of a deed conveying him a valid title to the real estate in question, but that the latter failed and refused to do so. There is no controversy as to the fact that the "regular commission" which the written authorization provides should be received by the appellant for selling the property is, or would be, 3 per cent. of the consideration paid or to be paid for it by the purchaser procured by him; and, as the consideration agreed to be paid by the purchaser was $35,000, 3 per cent. thereof would be $1,050, the amount of commission claimed in the petition.

The judgment under review does not indicate the ground or grounds upon which the circuit court sustained the demurrer to the petition, but we infer from what is said in the brief of counsel for appellee that it was sustained upon the theory that the consummation by the appellee and the purchaser of the sale that appellant made of the real estate under the authority conferred by the writing in question was necessary to entitle the latter to the commission sued for, and that, as the sale of the property was never consummated, and this fact appeared from the petition, it failed, in the opinion of the court, to state a cause of action.

We do not give the word "sale" as used in the writing executed to the appellant by the appellee the meaning attributed to it by the court below, but...