Thomas v. Young

• Decision Date: 01 March 1926
• Citation: 245 P. 75,42 Idaho 240
• Parties: W. A. THOMAS and E. C. THOMAS, Doing Business Under the Firm Name and Style of THOMAS COMPANY, Appellants, v. CHARLES YOUNG and PAULINE YOUNG, Husband and Wife, Respondents
• Court: Idaho Supreme Court

245 P. 75

42 Idaho 240

W. A. THOMAS and E. C. THOMAS, Doing Business Under the Firm Name and Style of THOMAS COMPANY, Appellants, v. CHARLES YOUNG and PAULINE YOUNG, Husband and Wife, Respondents

Supreme Court of Idaho

March 1, 1926

HUSBAND AND WIFE - BROKER'S CONTRACT FOR SALE OF COMMUNITY PROPERTY-EXECUTION OF CONTRACT BY HUSBAND ONLY-EFFECT-PLEADING - ALLEGATIONS NECESSARY TO CONSTITUTE CAUSE OF ACTION.

1. Complaint in action to recover commissions, setting up contract for commissions for sale of community property signed only by husband, does not state a cause of action against wife.

2. An action on contract can be prosecuted against a married woman only where it is her own contract, or for use and benefit of her separate estate.

3. Complaint in action to recover commissions, setting up contract for commissions for sale of community property signed by husband, and alleging the finding of purchaser ready and willing to buy under terms of contract, states a cause of action against husband, even though he might not be able to comply with contract.

4. Real estate broker under contract for commissions for sale of property, having obtained contract from proposed purchaser able to buy, or produced to principal a proposed purchaser is entitled, unless he has stipulated otherwise, to his commissions, though no sale was finally consummated.

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. Herman H. Taylor, Judge.

Action to recover commissions which plaintiffs claim are due to them from the defendants. Sustained in part and reversed in part and remanded.

Judgment in favor of Pauline Young affirmed and reversed as to Charles Young, and cause remanded with instructions. Costs awarded to appellants.

J. Ward Arney, for Appellants.

A husband, signing a real estate commission contract, even though the same affects community property, is personally liable for earned commissions. The husband, being the manager and having the control of the community property, may become personally liable and may bind the wife to the payment of real estate commissions. (C. S., sec. 4666.)

The husband is the legal representative of the wife as to community property and may make a valid contract for real estate commissions. (C. S., sec. 7979; Kohny v. Dunbar, 21 Idaho 258, Ann. Cas. 1913D, 492, 121 P. 544, 39 L. R. A., N. S., 1107; Wits-Keets-Poo v. Rawton, 28 Idaho 193, 152 P. 1064; Holt v. Empey, 32 Idaho 106, 178 P. 703; Overland National Bank v. Halveston, 33 Idaho 489, 196 P. 217; Boggs v. Seawell, 35 Idaho 132, 205 P. 262.)

Real estate commission is earned when the agent finds a purchaser ready, willing and able to purchase; or brings together the minds of the seller and purchaser as to price and terms. (Weatherhead v. Cooney, 32 Idaho 127, 180 P. 760; Shanklin v. Hall, 100 Cal. 26, 34 P. 636; Helling v. Darby, 71 Kan. 107, 79 P. 1073.)

Ezra R. Whitla, for Respondents.

An action can only be prosecuted against a married woman where it is her own contract or for the use and benefit of her separate estate. (McFarland v. Johnson, 22 Idaho 694, 127 P. 911; Jaeckel v. Pease, 6 Idaho 131, 53 P. 399; Bank of Commerce v. Baldwin, 12 Idaho 202, 85 P. 497.)

Before plaintiffs are entitled to recovery they must allege and show that they brought the purchaser to the vendor and offered to close the deal upon the terms submitted by the vendor, or they must show that they made the contract which their purported agency agreement authorizes them to make. In this case they do not allege either. (Burnett v. Edling, 19 Tex. Civ. App. 711, 48 S.W. 775.)

The wife's community interest in the property is the same as the husband. (Peterson v. Peterson, 35 Idaho 470, 207 P. 425; Kohny v. Dunbar, 21 Idaho 258, Ann. Cas. 1913D, 492, 121 P. 544, 39 L. R. A., N. S., 1107; Ewald v. Hufton, 31 Idaho 373, 173 P. 247; Phy v. Selby, 35 Idaho 409, 207 P. 1077.)

FEATHERSTONE, District Judge. William A. Lee, C. J., and Wm. E. Lee and Givens, JJ., concur.

OPINION

FEATHERSTONE, District Judge.

The plaintiffs filed their complaint in the court below, to which complaint defendants interposed a demurrer, which was sustained and from the order sustaining the demurrer plaintiffs appeal.

In the complaint plaintiffs set out in full the contract under which they claim said commission, which is as follows:

"Contract.

"Coeur d'Alene, Idaho 3/26/1924.

"To Thomas Co. Coeur d'Alene, Idaho.

"For and in consideration of one Dollar ($ 1) the receipt of which is acknowledged I hereby appoint you agent to make sale of the real property herein described as Tax No. 854 Recorded 19 Page 157 Book Deeds, a triangular lot Cor. Sherman & Second Ave., Coeur d'Alene, Idaho, for the price of $ 6500 upon the following terms $ 1500 cash, $ 5000 secured by mortgage thereon for 3 years at 7 per cent, and you are hereby authorized to accept a deposit to be applied on the purchase price, and to execute a binding contract for sale on my behalf.

"In case the above-described property is sold or disposed of within the time specified, I agree to make the purchaser a good and sufficient warranty deed to the same and to furnish a complete abstract of title, if required; and it is further agreed that you shall have and may retain from the proceeds arising from such sale 5 per cent commission on the above price; and 5 per cent of all the consideration for which said property is sold over and above price above specified.

"This contract to continue thereafter until terminated by my giving unto you as agent 10 days notice in writing.

"Signed--CHAS. YOUNG.

"BUSINESS LOT.

Owner Chas. Young.

Address Coeur d'Alene, Ida.

Price $ 6500 Cash $ 1500 Mortgage $ 5000 at 7 per cent.

Street Sherman Between 2 & 1st or Elec.

Front 22-2nd-150 feet on Sherman.

Lot Tax No. 854 Addition Coeur d'Alene & King.

Paved Yes.

Sidewalk yes Kind Concrete."

Plaintiffs allege that they fully complied with the terms of the contract and while it was in full force and effect and on or about July 15, 1924, they procured a purchaser for said property who was willing, able and ready to purchase said property under the terms of the contract, and further allege, "That defendants after being advised that plaintiffs had found such purchaser ready and willing to buy as aforesaid, wilfully and fraudulently endeavored to evade and repudiate the liability for said commissions."

Defendants demurred on the grounds "That said complaint does not state facts sufficient to constitute a cause of action, in this:

"(a) That it is not alleged, stated or shown as against the defendant, Pauline Young, that she made or entered into any contract whatsoever with the plaintiffs to sell the property...