Walsh v. Turlick

• Decision Date: 22 November 1972
• Court: Connecticut Supreme Court
• Parties: Charles J. WALSH et al. v. Richard TURLICK et al.

Page 759

316 A.2d 759

164 Conn. 75

Charles J. WALSH et al. v. Richard TURLICK et al.

Supreme Court of Connecticut.

Nov. 22, 1972.

Raphael Korff, Bridgeport, with whom, on the brief, was Edward J. Behuncik, Bridgeport for appellants (defendants).

John J. Darcy, Fairfield, with whom, on the brief, was John R. Curran, Fairfield, for appellees (plaintiffs).

Before HOUSE, C.J., and RYAN, SHAPIRO, LOISELLE and MacDONALD, JJ.

LOISELLE, Associate Justice.

In this action, brought for a real estate broker's commission, the court rendered judgment for the plaintiffs and the defendants have appealed.

The defendants assign error in the refusal by the court to include in its finding eight paragraphs of the draft finding which they claim are undisputed. To secure the addition of a fact on this ground the defendants must refer in their brief to some part of the appendix, the pleadings or an exhibit properly before us which discloses that the plaintiffs admitted the truth of the fact or that its validity was conceded to be undisputed. Stoner v. Stoner, 163 Conn. 345, 347, 307 A.2d 146; Barnini v. Sun Oil Co., 161 Conn. 59, 60, 283 A.2d 217; Martin .v Kavanewsky, 157 Conn. 514, 515, 255 A.2d 619; Maltbie, Conn.App.Proc. § 158. Several of the requested additions to the finding are nowhere shown to be admitted or undisputed and, therefore, will not be added. Vogel v. New Milford, 161 Conn. 490, 491, 290 A.2d 231; Martin v. Kavanewsky, supra, 157 Conn. 516, 255 A.2d 619. Of the remaining requested additions some were in fact included or are implicit in the finding. The finding need not be in language identical with the draft finding. Blatt v. Star Paper Co., 160 Conn. 193, 201, 276 A.2d 786; Aczas v. Stuart Heights, Inc., 154 Conn. 54, 55, 221 A.2d 589. The remaining claims are immaterial to our disposition of the appeal. No additions are warranted. Barnini v. Sun Oil Co., supra, 161 Conn. 61, 283 A.2d 217; Charter Oak Estates, Inc. v. Kearney, 160 Conn. 522, 525, 280 A.2d 885.

The defendants' claim that the finding, in part, was so arranged as to distort the actual facts is well taken and to that extent the finding is corrected.

The defendants attack as irrelevant two paragraphs of the finding. This assignment of error fails to allege that facts were found without evidence or were of doubtful meaning and does not comply with § 622 of the Practice Book. Furthermore, an examination of the paragraphs challenged establishes that these findings were relevant and properly found.

The following facts are in the finding, which is not subject to any further material change. The plaintiffs Charles J. Walsh and John A. Sturges were real estate brokers licensed under the laws of the state of Connecticut. On or before May 21, 1969, Ann Smith of the town of Fairfield was associated with the plaintiffs' firm, Walsh and Sturges, and was also a licensed real estate broker in the state of Connecticut. Through a multiple listing agreement with another broker, the defendant Richard Turlick acting for himself and with authority to act for his brother the defendant Donald Turlick offered for sale property they had inherited. During the latter part of May, 1969, after the expiration date of the multiple listing agreement, Mrs. Smith showed the premises to David Gaudet, hereinafter referred to as the buyer, who was sufficiently interested to give a binder and sign a proposed contract prepared in the plaintiffs' office. Thereafter, Mrs. Smith either brought or sent the proposed contract to the defendants' attorney, who was directed to communicate with counsel representing the buyer. The defendants' attorney, not satisfied with some terms of the contract prepared in the plaintiffs' office, drafted an agreement whereby the defendants agreed to sell the property to the buyer for $46,000 and the buyer was to pay a deposit of $4600. The contract recognized the plaintiffs as the broker making the sale and it stipulated that the defendants 'hereby agree to pay the agreed commission upon transfer of title.' This contract was sent to and approved by the buyer's attorney and eventually signed by both the defendants and the buyer, who paid the deposit. The contract was not made available to the plaintiffs nor was it reviewed or approved by them.

At all times the defendants were ready, willing and able to sell in accordance with their contract, but the buyer decided to abandon the contract, not to take title and to forfeit his deposit.

Two decisive issues control the determination of this appeal: first, were the plaintiffs acting as agents of the defendants, and second, if so acting, did the plaintiffs perform a sufficient service to earn a commission.

The defendants assign error in the court's conclusion that the plaintiffs were the authorized agents of the defendants. An attack on a conclusion of the trial court is tested by the finding, Brauer v. Freccia,159 Conn. 289, 293, 268 A.2d 645; Brockett v. Jensen, 154 Conn. 328, 331, 225 A.2d 190. If the court's conclusion that the plaintiffs were agents of the defendants is legally and logically consistent with the facts found it will not be altered. Hames v. Hames, 163 Conn. 588, 592, 316 A.2d 379; Covino v. Pfeffer, 160 Conn. 212, 216, 276 A.2d 895; Blatt v. Star Paper Co.,supra.

Although the multiple listing agreement had expired before the plaintiffs procured the prospective buyer, an agent-principal relationship existed between the plaintiffs and the defendants on the basis of an implied contract. Weinhouse v. Cronin, 68 Conn. 250, 253, 36 A. 45. An implied contract exists when an agent acts on an honest belief that a request has been made of him to render services as a broker or under circumstances indicating that he expects to be paid and the defendant avails himself of the benefits of such services. Merwin v. Beardsley, 134 Conn. 212, 216, 56 A.2d 517; Sullo v. Luysterborghs, 129 Conn. 172, 174-175, 26 A.2d 784; Cassidy v. Congdon, 121 Conn. 68, 183 A. 1; Canfield v. Sheketoff, 104 Conn. 28, 33, 132 A. 401. The question is ordinarily one of fact for the trial court. Sullo v. Luysterborghs, supra, 129 Conn. 175, 26 A.2d 784.

The trial court could reasonably have concluded from the subordinate facts found that the plaintiffs were engaged in the real estate brokerage business and expected to be paid for their services and that the defendants, in accepting the buyer produced by the plaintiffs and contracting with said buyer for the sale of the premises, knew the plaintiffs expected to be compensated for their services and acknowledged this expectation by recognizing the plaintiffs as the broker in their contract with the buyer. Consequently, the court's conclusion that the plaintiffs were court's conclusion that the plaintiffs were agents of the defendants will not be disturbed.

The remaining issue to be considered is whether the plaintiffs, as agents of the defendants, performed a sufficient service to be entitled to a commission. It is well settled in this state that a broker is entitled to a commission when his efforts have resulted in procuring a customer who is ready, able and willing to buy on terms and conditions prescribed or agreed to by the seller. Martino v. Palladino, 143 Conn. 547, 548, 123 A.2d 872; Thomas F. Rogers, Inc. v. Hochberg, 143 Conn. 22, 118 A.2d 910; Dyas v. Akston, 137 Conn. 311, 77 A.2d 79; Roche v. Curtin, 131 Conn. 66, 69, 37 A.2d 805; Wright v. Reid, 111 Conn. 141, 146, 149 A. 239; Notkins v. Pashalinski, 83 Conn. 458, 460, 76 A. 1104. The finding fails to reveal that the buyer was able to purchase the premises at the time of the signing of the contract or any time thereafter. It is also clear that subsequent to the signing of the contract the buyer became unwilling to purchase the premises. The court erroneously based its conclusion that a commission was due on the theory that a ready, able and willing purchaser had been procured by the plaintiffs. This conclusion is not supported by the finding.

The judgment can be sustained only if, as the plaintiffs claim, it is supportable by the pleadings and a finding that the plaintiffs procured an enforceable or binding contract between the buyer and the defendants. A broker has fully performed his task when he brings the parties to an enforceable agreement. Meagher v. Reeney, 96 Conn. 116, 113 A. 169; McHugh v. Bock, 134 Conn. 519, 58 A.2d 740; Restatement (Second), 2 Agency § 445, comment (d); note, 74 A.L.R.2d 437, 443, § 3a. It was noted in Meagher v. Reeney, supra, 96 Conn. 118, 113 A. 169, quoting from Francis v. Baker, 45 Minn. 83, 84, 47 N.W. 452, that if, 'without any fraud, concealment, or other improper practice on part of the broker, the principal accepts the person presented, either on the terms previously proposed or upon modified terms then agreed upon, and enters into a binding and enforceable contract with him for the purchase of the property, the commission is fully earned.'

The plaintiffs pleaded a contract of purchase and sale between the defendants and the named buyer. This pleading was admitted by the defendants and neither the finding nor the pleadings indicate that any of the parties to the contract or to this action questioned the enforceability of the contract. Where a seller stands on the contract, retains a deposit as liquidated damages, or executes a mutual release with the other party to the contract, these actions demonstrate a recognition by the parties that the contract is binding and entitle the broker to the same compensation, that is, a commission, as he would have received had the exchange or sale been effected. Provost v. McCarthy, 136 Conn. 447, 450, 72 A.2d 231; McHugh v. Bock, supra, 134 Conn. 521, 58 A.2d 740; Leete v. Norton, 43 Conn. 219, 226.

In the present action the finding establishes a contract was signed and approved by the buyer and the defendants for the sale of the defendants' premises. The contract provided that 'in the event...