Trickey v. Crowe

• Decision Date: 20 March 1903
• Docket Number: Civil 791
• Citation: 8 Ariz. 176,71 P. 965
• Parties: M. M. TRICKEY, Administrator of the Estate of Norman H. Chapin, Deceased, Defendant and Appellant, v. GEORGE W. CROWE, Plaintiff and Appellee
• Court: Arizona Supreme Court

71 P. 965

8 Ariz. 176

M. M. TRICKEY, Administrator of the Estate of Norman H. Chapin, Deceased, Defendant and Appellant, v. GEORGE W. CROWE, Plaintiff and Appellee

Civil No. 791

Supreme Court of Arizona

March 20, 1903

APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Santa Cruz. George R Davis, Judge. Reversed.

Judgment of supreme court affirmed. Opinion, 204 U.S. 228.

The facts are stated in the opinion.

Smith &amp Ives, and Duffy & Richardson, for Appellant.

In all cases where the principal has revoked the contract before the broker has earned his commissions, the broker's right to commissions is absolutely cut off, except where it has been found as a fact that such revocation was a mere device to defraud the broker of his right to commissions. Sibbald v. Bethlehem Iron Co., 83 N.Y. 378, 38 Am. Rep. 441; Beale v. Creswell, 3 Md. 196; Zeimer v Antisel, 75 Cal. 509, 17 P. 642; Armstrong v Wann, 29 Minn. 126, 12 N.W. 345; Satterthwaite v. Vreeland, 46 How. Pr. 508; Carlson v. Nathan, 43 Ill.App. 364; Buehler v. Wiffenbach, 21 Misc. 30, 46 N.Y.S. 861; Pryor v. Jolly, 91 Tex. 86, 40 S.W. 959; Antisdell v. Camfield, 119 Mich. 229, 77 N.W. 944.

The interest arising from commissions is not such an interest as will render the authority irrevocable. Stier v. Imperial Life Ins. Co., 58 F. 843; Barr v. Schroeder, 32 Cal. 609; Chambers v. Seay, 73 Ala. 372; Hamilton v. Frothingham, 59 Mich. 253, 26 N.W. 486; Green v. Cole, 103 Mo. 70, 15 S.W. 317; Coffin v. Landis, 46 Pa. St. 426.

The death of the principal put an end to the agency, the broker's authority not being coupled with an interest. Boone v. Clarke, 3 Cranch C.C. 389, Fed. Cas. No. 1641; Hunt v. Rousmanier, 8 Wheat. 174, 5 L.Ed. 589; Missouri v. Walker, 125 U.S. 339, 8 S.Ct. 929, 31 L.Ed. 769; Scruggs v. Driver, 31 Ala. 274.

Hereford & Hazzard, for Appellee.

OPINION

DOAN, J.

-- This was an action brought by the appellee, as plaintiff, against the appellant, as administrator of the estate of N. H. Chapin, deceased, to recover the sum of five thousand dollars as commission on a sale alleged to have been effected by the plaintiff for the deceased, Chapin, during his life, of a one-fourth interest in a mine. The facts in the case, as disclosed by the record, were as follows: Previous to March, 1899, a mine known as the "Pride of the West" was owned by three parties. A man named Olsen owned one half thereof, and Norman H. Chapin and Jerry Neville each owned a one-fourth interest therein. In March, 1899, the plaintiff, Crowe, brought this mine to the attention of the Emerson Gee and his associate, A. R. Wilfley, and visited the mine with them. Wilfley subsequently, in the latter part of March, 1899, purchased Olsen's one-half interest, and made an agreement with Chapin and Neville for the purchase of the remaining one-half interest, a deed to which remaining one-half interest was executed by Chapin and Neville and placed in escrow, the terms of the escrow agreement providing that the deed was to be delivered to Wilfley upon the payment by him of the sum of one hundred thousand dollars in cash on or before the first day of April, 1900. It was verbally agreed between Crowe on the one part and Chapin on the other, representing himself and Neville, that Crowe was to receive ten per cent of the purchase money received by them for their interest in the mine as a commission for making the sale. This verbal agreement was made and the terms of sale were arranged in the latter part of March, 1899, and on April 1, 1899, the deed and escrow agreement were executed by Chapin and Neville, and deposited in the Consolidated National Bank of Tucson. Prior to the first day of April, 1900, Chapin and Neville both died. M. M. Trickey was appointed the administrator of Chapin's estate, and one Henry Harmon was appointed the administrator of Jerry Neville's estate. Wilfley failed to pay the money and take the property under this option, and after the expiration of the time mentioned in the escrow agreement, and in accordance with the terms thereof, the deed in escrow was returned to Trickey, the administrator of Chapin's estate. Thereafter, on the seventh day of April, 1900, upon the payment of one thousand dollars by Wilfley, the administrators of these two estates made another agreement with him, by the terms of which they agreed to execute a deed to the half interest in the said mine owned by the two estates upon the payment of the purchase price of one hundred thousand dollars in specific amounts upon the different dates therein expressed. After the lapse of this option, M. M. Trickey, as administrator of the estate of Chapin, on the nineteenth day of June, 1900, entered into another agreement, whereby he gave to Wilfley an option to purchase the one-fourth interest in the said mine owned by the estate of Chapin, and obligated himself to execute to Wilfley a deed for such interest upon the payment of five thousand dollars in cash, five thousand dollars within three months, the further sum of five thousand dollars within six months, the further sum of five thousand dollars within nine months, the further sum of five thousand dollars within twelve months, and the further sum of twenty-five thousand dollars within eighteen months, making the full sum of fifty thousand dollars, the full purchase price to be paid. In pursuance of this option A. R. Wilfley was credited with five hundred dollars of the one thousand dollars paid on the lapsed option of April 7th prior, and paid to Trickey, administrator, four thousand five hundred dollars on that date, June 19, 1900, and afterwards five thousand dollars on September 19, 1900, five thousand dollars on December 19, 1900, five thousand dollars on March 20, 1901, five thousand dollars on June 17, 1901, and twenty-five thousand dollars on December 7, 1901, as the purchase price of the interest of said estate in the said mine, being an undivided one-fourth interest therein.

On the tenth day of November, 1900, the plaintiff, Crowe, presented to Trickey, as the administrator of Chapin's estate, his claim against the estate of said Chapin for "ten per cent of the purchase price of the Pride of the West mine, agreement for the sale of which was entered into about April 1, 1899, and which said agreement of sale was made by Chapin and Neville to A. R. Wilfley, and which sale was brought about by the said George W. Crowe, upon the agreement that he was to receive ten per cent commission upon said purchase price from said Chapin and Neville, one half of said ten per cent being $5,000." This claim having been rejected by the administrator, George W. Crowe brought this action in the district court of Santa Cruz County on the twenty-fifth day of January, 1901. He alleged in his complaint that Norman H. Chapin died on or about the eleventh day of January, 1900, and that on the eighth day of February, 1900, the defendant, M. M. Trickey, was appointed and qualified as the administrator of Chapin's estate; that between the eighth day of February, 1898, and the eleventh day of January, 1900, the plaintiff performed services for the deceased, Chapin; that the particular nature of the said services was procuring a purchaser and bringing about the sale of the interest of said deceased, together with the interest of his co-owner, Jerry Neville, in the said mine, to such purchaser; that the purchaser so found and procured by plaintiff was A. R. Wilfley; that through the services and efforts of plaintiff the said deceased and the said Neville were enabled to sell and did sell to the said A. R. Wilfley their said interests in the said mine for the purchase price of one hundred thousand dollars, of which the share of the said deceased was fifty thousand dollars; that said services were reasonably worth the sum of five thousand dollars, and that said Chapin promised and agreed to pay to plaintiff for said services the sum of five thousand dollars, being ten per cent of said purchase price; that, as plaintiff believed, the whole of said purchase price had been paid to said Chapin or to said defendant, and that neither the said Chapin nor the said defendant had paid to plaintiff the said five thousand dollars, or any part thereof; that the claim therein set forth was, about the tenth day of November, 1900, presented to the defendant, as administrator of Chapin's estate, and by him rejected; that the estate of Chapin was solvent.

The defendant answered by demurrer, an allegation of defect of parties, and a verified general denial.

On the trial of the case before the court without a jury, the court found as facts: "That between the 8th day of February 1898, and the 11th day of January, 1900, the plaintiff performed services for the said Norman H. Chapin, at the request of said Chapin, in bringing about a sale of the interests of the said Chapin in the Pride of the West mine, which mine is located in the said county of Santa Cruz; that the particular nature of said services was the finding and procuring of a purchaser and bringing about a sale of the interests of the said Chapin in the said Pride of the West mine; that the purchaser so found and procured by plaintiff was A. R. Wilfley, of Denver, Colorado -- for which services the said Chapin agreed to pay to the said plaintiff ten per cent of all moneys received by the said Chapin from the said Wilfley on account of the sale by the said Chapin and the purchase by the said Wilfley of the said mine. That the said A. R. Wilfley paid to the said defendant, as such administrator, for the interest of the said Chapin, the sum of fifty thousand dollars ($50,000), as follows: April 7, 1900, $500; June 19, 1900, $4,500; September 19, 1900, $5,000; December 19, 1900, $5,000; March 20,...