Terry v. Bishop

• Decision Date: 15 June 1922
• Citation: 112 S.E. 619
• Parties: TERRY . v. BISHOP et al.
• Court: Virginia Supreme Court

112 S.E. 619

TERRY .

v.BISHOP et al.

Supreme Court of Appeals of Virginia.

June 15, 1922.

Error to Circuit Court, Halifax County.

Action by F. W. Bishop and J. D. Fry, partners trading as the Bishop-Fry Company, and others, against E. M. Terry. From a judgment for plaintiffs, defendant brings error. Reversed, and final judgment entered.

This is an action of trespass on the case in assumpsit brought by the defendants in error (who will be hereinafter referred to as plaintiffs, or by their individual names), realestate agents, against the plaintiff in error (who will be hereinafter referred to as defendant, or by his individual name), to recover certain commissions claimed by the plaintiffs as owing to them by the defendant on a perfected sale of real estate in accordance with the agreement between the parties.

There was a verdict for the defendant Terry, which the court below set aside. Thereupon the court entered judgment for the plaintiffs, and the defendant brings error.

The declaration contains; the common counts in assumpsit and also three special counts declaring upon the alleged special contract in writing relied on by the plaintiffs.

The special contract in writing is as follows:

"South Boston, Va., Oct. 18, 1919.

"Bishop-Fry Co., Real Estate Agents, South Boston, Va.: I hereby place my property containing about 1, 800 acres, more or less, situated and described as follows: In Lunenburg county, Va., between Victoria and Kenbridge, and known as Beech Forest tract, and a part of the Guy Tuggle and Davis tracts—in your hands for sale, and I hereby authorize and empower you to sell upon the terms hereinafter set out, and to enter into and execute all necessary contracts with the purchaser to carry out the sale. I agree to accept for the said property the sum of fifteen dollars ($15) per acre, terms to be not less than one-fourth cash, the balance in three equal installments, payable on or before one, two, and three years from the date of sale. Deferred payments bearing 6% interest, and secured by deed of trust on the entire property, or at such smaller price as may be acceptable to me, and in consideration of the services to be performed by the said Bishop-Fry Company in effecting a sale of this property, I agree, if the said property is sold by them within 15 days, to pay them 10% of the selling price as their commission, or compensation for such service; said commission to be paid from the first payment of the purchaser.

"This agreement is in force and binding on me 15 days. Should I sell the land to any one whose attention as a purchaser has been called to the said property during the 15 days, this agreement will be in force and binding on me.

"E. M. Terry. [Seal.]

"The life of this contract is fifteen days only, after which time it will become cancel."

The plaintiffs succeeded in making an executory contract of sale of the land to one S. W. Minor within the 15 days specified in the said special contract, which was evidenced by the following writing:

"Received of S. W. Minor one hundred dollars ($100.00) in part payment of a certain tract of land, situated in Lunenburg county, Virginia, on the south side of the Vietoria-Kenbridge road, containing about 1, 700 acres, more or less, it being the unsold portion of that tract of land, or tracts of land, "known as the 'Beech Forest and Guy Tuggle and Davis tract.' The purchase price of the aforesaid land is fifteen dollars ($15.00) per acre, payable one-fourth cash and the balance in equal installments on or before one, two, and three years after date.

"It is understood and agreed that the one-fourth cash payment is due and payable upon the tender of a good and sufficient deed for said property with full covenants of warranty, free and clear of all incumbrances, the taxes on said lands for 1919 to be paid by the present owner of the land, E. M. Terry, of South Boston, Virginia.

"This contract and agreement and sale made through Bishop-Fry Company, real estate agents of South Boston, Virginia, under assigned option held by them.

"Witness our hands and seals in duplicate this 21st day of October, 1919.

"E. M. Terry, [Seal.] "By Bishop-Fry Co., by F. W. Bishop. "S. W. Minor. [Seal.]"

It will be observed that this writing contains no provision fixing the day for completing the contract of sale.

Minor testified before the jury to the effect that, when he signed the writing just mentioned, he had an understanding with and expected the Atlantic Coast Realty Company to finance the transaction, and that he was to have a third and that company two-thirds of any profits, that he turned the matter over to that company as soon as said writing was executed, and the company had the title examined and found certain clouds on it, which the plaintiffs the real estate agents, however, claimed constituted no real defect in the title, but that the realty company declined to put up any purchase money until the clouds were removed, and that, by mutual consent of the real estate agents, Minor, and the realty company, the time for the completion of the contract of sale was postponed pending the ascertainment of what could or would be done about removing the clouds from the title, no definite time for the completion being named. There was other testimony to the same effect. The testimony for the defendant, Terry, was to the effect, however, that he had no communication with Minor or with the realty company direct, but solely through the plaintiff Bishop. And Terry testified that the writing signed by Minor and the plaintiff real estate agents was never delivered to him, nor any copy of it, and that he at no time accepted that contract of sale as the performance on the part of the plaintiffs of the special contract with him aforesaid.

On the contrary, the testimony of the defendant, Terry, before the jury was express that, as the plaintiff Bishop reported the matter to...