Wilson v. Schmidt & Wilson Inc

• Decision Date: 19 November 1945
• Citation: 184 Va. 642,35 S.E.2d 737
• Court: Virginia Supreme Court
• Parties: WILSON et al. v. SCHMIDT & WILSON, Inc.

35 S.E.2d 737

184 Va. 642

WILSON et al.

v.SCHMIDT & WILSON, Inc.

Supreme Court of Appeals of Virginia.

Nov. 19, 1945.

Appeal from Chancery Court of Richmond; Brockdnbrough Lamb, Judge.

Suit under Code 1942, § 5334 et seq., by the Savings Bank & Trust Company, as guardian of Mrs. Louise R. Wester-hold, an incompetent person, for sale of incompetent's real estate, wherein Schmidt & Wilson, Incorporated, filed a petition in the cause alleging that it had been procuring cause of the offer which had been recommended to and accepted by the court and that, therefore, it was entitled to a commission for having effected the sale, which petition was opposed by George P. Wilson and Louise S. Wilson, the purchasers of the property. From an adverse decree, George P. Wilson and Louise S. Wilson appeal.

Affirmed.

Before CAMPBELL, C. J., and HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

H. M. Ratcliffe and George E. Haw, both of Richmond, for appellants.

George B. White, of Richmond, for appellee.

EGGLESTON, Justice.

On May 2, 1944, the Savings Bank & Trust Company qualified under Code, § 1080a, as guardian of Mrs. Louise R. Westerhold, an incompetent person. On May 25 the bank listed the incompetent's dwelling house on Seminary avenue, in the city of Richmond, with several real estate firms, including Schmidt & Wilson, Incorporated. These listings were at $16,000, with the understanding that any offer made was to be subject to the approval of the proper court.

On June 7 the bank, as guardian of the incompetent person, instituted a suit under chapter 217 of the Code, for the sale of this real estate. The suit was docketed by consent and a decree was entered referring the cause to a commissioner in chancery with directions to execute the usual inquiries. The commissioner reported, among other things, that the fee-simple value of the property was from $13,000 to $14,000. By decree entered on July 5, this report was confirmed and a special commissioner was named to sell the property, after proper advertisement, at public auction. The special commissioner was further authorized to seek a private sale of the property, but no offer therefor was to be accepted by him until it. had been submitted to and approved by the court.

On July 10 the special commissioner reported to the court that he had received a written offer from George P. Wilson and Louise S. Wilson to purchase the property at $13,500 cash, that this offer had been made direct to the bank without the intervention of any real-estate broker, and that hence no real-estate commissions were involved. The report recommended that this offer be accepted. On the same day a decree was entered confirming the report and directing the special commissioner to accept the offer and convey the property to the Wilsons upon the receipt of the stated purchase price.

Before any action had been taken under this decree, Schmidt & Wilson, Incorporated, hereinafter called the broker, filed its petition in the cause, alleging that the property had been listed with it for sale on May 25, 1944, subject to the usual real-estate commissions, that it had been the procuring cause of the offer which had been recommended to and accepted by the court, and that, therefore, it was entitled to a commission of five per cent. of the purchase price, or $675, for having effected the sale. It prayed that an allowance of that amount be decreed to it out of the purchase price.

The court, being convinced that the claim for commissions had been presented in good faith, put the purchasers upon terms either to accept the responsibility for and pay any commissions to which the broker might legally be entitled, or else submit to a vacation of the decree confirming the sale. After the Wilsons had filed an answer to the broker's petition, denying the latter's right to the commissions claimed, by consent of all parties a decree was entered under the provisions of which the matter was submitted to the lower court for its determination, with the reservation of the right of appeal.

It was conceded by all parties, both in the court below and before us, that the Wilsons, as the purchasers of the property, in order to make good their offer made direct to the bank, must pay any commissions to which the broker may be entitled.

The trial court after having heard the evidence ore tenus entered a decree holding that the broker was entitled to recover the amount of the commissions claimed, and from that decree the present appeal has been taken.

The first contention of the appellants is that the evidence fails to show that thebroker was the procuring cause of the sale, and hence is not entitled to the commissions claimed.

Whether a broker is the procuring cause of a sale of property listed with him is usually a question of fact. Shea Realty Corporation v. Page & Taylor, 111 Va. 490, 493, 69 S.E. 327. Since under well-settled principles the finding of the trial court on an ore tenus hearing has the force and effect of the verdict of a jury, and has settled all conflicts in the evidence in favor of the broker (Lowdon v. Low-don, 183 Va. 78, 79, 31 S.E.2d 271), the relevant facts may be thus stated:

Between May 25 and July 1, representatives of the broker showed the property to a number of prospects. Since the dwelling was furnished and the bank retained the keys, one of its officers accompanied the broker and its prospective customer on each of these trips.

On Thursday, June 29, Mrs. Wallace Blanks, acting for the Wilsons, who lived at South Boston, telephoned the broker's office and asked to speak to Mrs. Pleasants, one of its representatives or saleswomen, in whose name a certain house on Wilmington avenue had been advertised. Mrs. Pleasants was out of the office and Mrs. Blanks talked to Mr. Tyson. In addition to the Wilmington avenue house, which had prompted the telephone call, Mr. Tyson mentioned a number of other residences which the broker had listed for sale. Among them was the Westerhold property on Seminary avenue. Although Mr. Blanks was acquainted with Mrs. Westerhold, and had been in the house on a social visit, her conversation with Mr. Tyson was the first information that she or the Wilsons had that this property was for sale.

On Saturday, July 1, Mrs. Wilson arrived in Richmond and through Mrs. Blanks made an engagement with Mrs. Pleasants to look at a number of properties that afternoon.

As soon as she had made this engagement, Mrs. Pleasants telephoned the bank and talked with Mr. Godsey, one of its officers, who on previous occasions had been with the broker's salesmen when the property was being shown to prospective customers. She told Mr. Godsey that she wanted to show the Westerhold property to a prospect that afternoon and requested that an officer of the bank meet her there with the keys. She was told that Mr Word, the president of the bank, would be out of town until after July 4, the following Tuesday, and that no other officer of the bank was available to meet with her and show the property that (Saturday) afternoon.

On the same afternoon Mrs. Pleasants, pursuant to her appointment with Mrs. Wilson, took the latter, Mrs. Blanks, and their mother to see a number of properties in the Ginter Park area in which the Westerhold residence is located. As they passed the Westerhold residence, Mrs. Pleasants remarked that her firm had this property listed for sale at $16,000, that it was controlled by a bank which insisted upon having one of its officers present when it was being shown, and that while she had not been able to arrange with the bank's officers for an inspection of the property that afternoon, she would make an engagement for that purpose the following week. The then drove into the grounds, looked over the property in some detail, and went up on the porches and looked through the windows. While Mrs. Wilson seemed considerably interested in the property, she stated to Mrs. Pleasants that the price of $16,000 was prohibitive. Before they separated that afternoon it was understood that Mrs. Pleasants would arrange with the officers of the bank to show Mrs. Wilson the interior of the house during the following week, and after July 4.

That night Mrs. Blanks and Mrs. Wilson discussed the various properties which they had viewed during the day, and Mrs. Blanks was warm in her praise of the Westerhold property. Naturally, they wondered whether it might not be bought at a smaller price direct from the bank. Mrs. Pleasants testified that she had given Mrs. Blanks and Mrs. Wilson the name of the bank which had the property in charge, and even the name of its president, Mr. Word. This both Mrs. Wilson and Mrs. Blanks denied. At any rate, Mrs. Blanks found out from a friend (Dr. Curry) that Mr. Word was the president of the bank which had control of the property and that it probably could be acquired at a less price than that at which it had been quoted to her. She immediately telephoned Mr. Word and made an engagement with him to show her and Mrs. Wilson the property the next afternoon (Sunday, July 2).

After Mrs. Wilson had inspected the property with Mr. Word, she showed considerable interest in buying it. She asked Mr. Word whether it could be purchased at $13,000. He inquired whether any real-estate commissions were involved and she said "no, " although she did say that she had viewed the property with a "real-estate agent" the previous afternoon. However, Mr. Word pursued this inquiry no further.

On the next day (Monday, July 3) Mrs. Wilson made an offer, direct to the bank, to purchase the property at $13,000 cash. This offer was laid before the committee of the bank on Thursday, July 6, and was rejected. But, in rejecting the offer, Mrs. Wilson was led to believe that the bank would accept $13,500 net cash for the property. She immediately telephoned this information to her husband, at South Boston, who on the same day submitted a written offer at this latter figure, which was accepted by the bank...