United Farm Agency v. Malanuk, 22228

• Decision Date: 08 January 1985
• Docket Number: No. 22228,22228
• Citation: 284 S.C. 382,325 S.E.2d 544
• Court: South Carolina Supreme Court
• Parties: UNITED FARM AGENCY, Respondent, v. Robert MALANUK and Mary M. Malanuk, Appellants. . Heard

Page 544

325 S.E.2d 544

284 S.C. 382

UNITED FARM AGENCY, Respondent, v. Robert MALANUK and Mary M. Malanuk, Appellants.

No. 22228.

Supreme Court of South Carolina.

Heard Jan. 8, 1985.

Decided Jan. 30, 1985.

Charles L. Henshaw, Jr., Columbia, for appellants.

Ray L. Derrick, Columbia, for respondent.

HARWELL, Justice:

This is an action for a real estate commission on the sale of a house. The parties waived a jury trial, and the trial court awarded the respondent broker a commission of $5250 plus costs. We affirm as modified.

In an action at law tried by the judge without a jury, his factual findings have the same force as a jury verdict and are conclusive on appeal unless found to be without evidentiary support or controlled by an error of law. Snell v. Parlette, 273 S.C. 317, 256 S.E.2d 410 (1979).

The appellants Robert and Mary Malanuk put their home on the market and posted a "For Sale by Owner" sign on the property. Mr. Owen Watts, a broker for respondent United Farm Agency, was attempting to locate a house for Mrs. Julia Poe to purchase after she sold her mobile home park. Another broker told him about the Malanuk home. He contacted Dr. Malanuk and asked for permission to show the home to Mrs. Poe. Watts testified that he told the appellant that he charged a 7% commission on the sale of residential property. The appellant never specifically agreed to pay the 7% commission, but he gave the house key to Watts and allowed him to show the house to Mrs. Poe at the requested price of $75,000. The doctor's version of the agreement was that he agreed to pay the broker a $500 commission but only if the house sold within 30 days. Watts testified that Mrs. Poe was delighted with the house and that she gave him a $500 check to hold the property. Watts informed Dr. Malanuk of the $500 check and of Mrs. Poe's interest in purchasing the house. He mailed Malanuk a Property Presentation Notice stating that Mrs. Poe had been shown the property and that the commission obligation continued.

A day or two later, Mrs. Poe informed Watts that she would not sell the mobile home park or buy the house. He returned the $500 check to her. Shortly thereafter, Mrs. Poe purchased the home directly from the Malanuks for $70,000. The Malanuks paid the respondent no commission, and United Farm initiated this action.

A broker has generally earned his commission when he acts during his agency as the efficient or procuring cause of a sale, though the actual sales contract is made by the owner without the broker's aid. The broker is the procuring cause if his intervention is the foundation upon which the negotiations are begun. Cleveland and Williams v. Butler, 94 S.C. 406, 78 S.E. 81 (1913); Champion v. Whaley, 280 S.C. 116, 311 S.E.2d 404, (S.C.App.1984). The fact that a sales contract was entered into without the broker's knowledge does not defeat the rights of the broker to a commission. Dantzler Real Estate, Inc. v. Boland, 276 S.C. 275, 277 S.E.2d 705 (1981); Hutson v. Stone, 119 S.C. 259, 112 S.E. 39 (1922).

The better practice requires a written listing agreement. Real Estate Commission Reg. 105-18 (1976). However, oral commission agreements are often...