Washington v. Garrett

• Decision Date: 07 March 1949
• Docket Number: Record No. 3430.
• Citation: 189 Va. 57
• Parties: W. S. WASHINGTON AND EPPA D. KANE, CO-PARTNERS, ETC. v. JOHN F. GARRETT, ET AL.
• Court: Virginia Supreme Court

Page 57

189 Va. 57

W. S. WASHINGTON AND EPPA D. KANE, CO-PARTNERS, ETC. v. JOHN F. GARRETT, ET AL.

Record No. 3430.

Supreme Court of Virginia, Richmond.

March 7, 1949.

Present, All the Justices.

1. BROKERS — Compensation — Written Contract by Purchaser Not Required Unless Stipulated. — In the absence of a stipulation in a real estate broker's contract that he must also procure from the purchaser a valid, written contract of sale, or that the sale must be consummated before commissions are earned, it is not necessary to a complete performance of his duties that he produce such a written contract. Under such a contract he earns his commissions when he has procured a purchaser ready, willing and able to perform in accordance with the terms of the listing.

2. BROKERS — Good Faith Required of Parties in Real Estate Transactions — Case at Bar. — In the instant case, an action for real estate brokers' commissions, defendant owner listed his property for sale with plaintiffs, who induced a prospective purchaser to agree to take the property and sign a contract on a specified day, and so notified the owner. On the evening of the day he was notified, the owner listed the property with the other defendant, another agent, who shortly appeared with a contract signed by plaintiffs' purchaser. The owner accepted the contract and also entered into a contract with the agent providing for his commissions, and paid him a large sum thereunder. He notified the agent that the purchaser was a customer of plaintiff but the agent replied that he would work out the matter of commissions with them. Both defendants knew plaintiffs had performed all the services in connection therewith. It was not disclosed that there was any agreement that plaintiffs had to procure a written contract of sale from the purchaser or that they had to consummate the sale.

Held: That while plaintiffs had no exclusive listing and the owner had the right to list with other agents, he knew before he accepted the contract and paid the commissions that the purchaser was plaintiffs' customer and not the agent's, and the utmost good faith should be exercised by the parties in a transaction of this kind.

3. DEMURRERS — Operation and Effect — Admit Truth of All Allegations of Fact Well Pleaded — Case at Bar. — The instant case was an action by notice of motion for judgment to which a demurrer was interposed and sustained by the trial court. The notice was then amended and another demurrer interposed and sustained, and the case dismissed. The allegations of the notices appeared to be substantially sufficient.

Held: That the effect of the demurrers to the notices was to admit as true all allegations of material facts which were sufficiently pleaded, and that if details were required upon trial of the cause after remand, a bill of particulars might be requested.

4. DEMURRERS — Demurrers Which Do Not Go to Merits of Cause No Longer Allowed. — Section 6118 of the Code of 1942 (Michie) provides that "on a demurrer the court shall not regard any defect or imperfection in the declaration or other pleading, whether it has been heretofore deemed mispleading or insufficient pleading or not, unless there be omitted something so essential to the action or defense that judgment, according to law and the very right of the cause, cannot be given". The purpose of this section and section 6104 of the Code of 1942 (Michie), providing for the amendment of pleadings, is that demurrers challenging pleadings on grounds that are not substantial or material and which do not go to the very merits of a cause, are no longer allowed.

5. BILLS OF PARTICULARS — When Demanded — Right and Duty of Defendant to Demand. — It is the defendant's right and duty to call for a bill of particulars if a notice of motion does not sufficiently particularize the action.

Error to a judgment of the Corporation Court of the city of Alexandria. Hon. William P. Woolls, judge presiding.

The opinion states the case.

John Barton Phillips, for the plaintiffs in error.

Frank L. Ball, Howard W. Smith, Jr., and Charles Henry Smith, for the defendants in error.

GREGORY, J., delivered the opinion of the court.

The petitioners, who are partners, were doing a general real estate business in the City of Alexandria. They brought an action, by notice of motion for judgment, against John F. Garrett and John Hill Carter, for real estate commissions amounting to $1,000. A demurrer was interposed to the notice of motion and sustained by the trial court. The notice of motion was then amended and later another demurrer was interposed, also sustained, and the case dismissed.

From the allegations in the notices it appears that the defendant, Garrett, listed his real estate with the petitioners for sale at a price of $23,000, net. The listing was made on February 26, 1947, and in accordance therewith the petitioners showed the property to their prospective purchaser, Oliver Perry, on April 3, 1947. They induced him to agree to purchase the property and advised him how he could properly finance the purchase. He promised to go to their office on April 4, 1947, and sign a contract. This alone remained to be done. He did not appear at the agreed time. Thereupon, Garrett being out of the city, the petitioners addressed a letter to him and delivered it to his secretary. In this letter Garrett was advised that the property had been shown by Perry; that he was interested in its purchase, and that he was their customer. The secretary advised the petitioners that Garrett would return at eight o'clock that evening and that she would notify him regarding the letter immediately upon his return.

Around eight o'clock on the same evening Carter, the other defendant, who is also a real estate agent, went to the home of Garrett and...