Love v. Owens

1. Real Estate Broker—Commissions — What Necessary to Entitle to.—In order to entitle a real estate broker to commissions, for the sale of property intrusted to him, he must complete the sale ; that is, he must find a purchaser in a situation and ready and willing to complete the purchase on the terms agreed on. Then he will be entitled to them, although the vendor should refuse to go on and perfect the sale ; or the vendee should so refuse, if the sale is by a valid and binding contract between vendor and vendee, without any fault on the part of the vendor. 2. --Custom Among Brokers as to an Abandoned Sale —Case Adjudged.—Even if such a custom, as that the broker would not claim commissions in the case of a sale which failed from no fault of the seller, would constitute a defence in such a case as this, the evidence failed to establish any such custom here.

Appeal from Jackson Circuit Court, Hon. Turner A. Gill, Judge. ■ Statement of case by the court. This is an action to recover a broker’s commission for selling land. The contract of employment is as follows : “Independence, Mo., February 3, 1887. “We hereby appoint Love & Lobb my agents to sell or trade the following property, to-wit (description of property): All of the Pendleton tract in Independence, Mo., at and for the sum of $42,500 ; and I agree to give my said agents 2| per cent, commission cash, on the sale thereof. “Terms: $12,000 cash.. W. H. Colvert. “J. H. Owens.” The plaintiffs procured such purchaser in the person of John B. Stone, who was brought by plaintiffs to defendants, and a contract was accordingly entered into, in writing, between defendants and Stone, whereby defendants sold the property to Stone at the price of forty-two thousand, ñve hundred dollars, of which twelve thousand dollars was to be paid in cash, that is, one thousand dollars to be paid at signing of contract and eleven thousand dollars when deed to said property was delivered on satisfactory evidence of title ; and the balance to be paid as follows : eight thousand dollars in one year, with interest at the rate of eight per cent, and the purchaser to assume the payment of three notes amounting to twenty-two thousand cLollars, then a lien on said property. • The evidence showed that defendants were ready and willing to complete said contract of sale at all times, but the said Stone had refused or failed to keep the same, further than to make the cash payment of one thousand dollars, which defendants received, and yet hold. The evidence also showed that said Stone was solvent and able to perform said contract, and that defendants never took any steps to compel Stone to perform the whole of the contract on his part; and that before the trial of this cause below the defendants had conveyed the property to other parties. There was some evidence in the case by which defendants sought to show that there was a custom among real estate agents in Kansas City to the effect that where the sale fell through without any fault on the part of the seller no commissions were expected by the agent. This is sufficiently noticed in the opinion of the court. The case was submitted to the court without the intervention of a jury and the following finding of facts and declaration of law sufficiently indicate the theory on which the court tried the case: “ The court finds the facts in this case to be that defendants agreed with plaintiffs by the contract read in evidence that if the plaintiffs would procure a purchaser for the real estate described inthe petition; that for such services the defendants would pay two and one-half per cent, of the selling price. Plaintiffs by their own efforts did secure the purchaser John B. Stone, who entered into the contract which defendants read in evidence, for the purchase of said real estate defendants were ready and willing to make their deeds to said real estate to said Stone, but said Stone, without any reasonable cause or excuse, and without the fault of defendants, and after having made said contract, did refuse to carry out the same and refused to pay the balance of the purchase money, but violated his contract and declared the same off. Defendants have retained and still have the one thousand dollars cash paid by said Stone and hold the same as forfeited. Stone was all the time and is now fully able to answer in damages for violation of said contract, and besides defendants have ample remedy for specific performance as against said purchaser Stone. The plaintiffs sold the real estate for forty-two thousand, five hundred dollars, and they are entitled to recover their two and one-half per cent, on this sum, to-wit, $1,062.50, with six per cent, interest from the institution of this suit.” The court found the issues for plaintiffs. From this judgment defendants have appealed. I. By the written contract between plaintiffs and defendants, plaintiffs only became entitled to their commissions when they sold or traded defendants’ property on the terms therein mentioned, to a person ready, able, and' willing to purchase said property on said terms. Plaintiffs having failed to sell said property on these terms, agreed upon between themselves and defendants, are not entitled to their commissions, and the court erred in refusing the instruction asked by defendants, that, on the pleading and evidence, the finding and judgment should be for defendants. Reiger v. Bigger, 29 Mo. App. 421; McArthur v. Slauson, 53 Wis. 41. II. The execution of the written contract for the sale of said property by appellants to the person produced by respondents for the purchase thereof on the terms contained in said written contract, and the acceptance by appellants of the one thousand dollars cash paid thereon did not operate as an acceptance by appellants of such contract, and payment as performance, or as a waiver of performance by respondents of their agreement to sell said property on the terms of twelve thousand dollars cash payment thereon. Reiger n. Bigger, supra. III. The engagement of respondents, under their written contract of employment by appellants, as their agents, was to sell or trade the property of appellants, and respondents were only entitled to commissions as such agents on an actual sale thereof on the terms proposed in their contract of employment. They must produce a person who not only enters into an agreement to purchase on the terms mentioned in said contract of employment but who actually purchases, by complying with the terms of such agreement, or who is ready, able, and willing to consummate the agreement by complying with its terms on his part. And, as such person so produced by respondents, without the fault of appellants, failed and refused to take the property, pay the amount of the purchase money mentioned in said contract of employment, and execute the securities agreed upon in the contract for the purchase and sale of said property, appellants being always ready, able, and willing to complete the agreement, on their part, on such compliance by the person so produced by respondents, respondents have failed to comply with the terms of their employment by appellants, and the judgment in their favor should be reversed. Hayden ¶. Orillo, 26 Mo. App. 289, and cases cited; Reiger v. Bigger, 29 Mo. App. 421; Budd v. Zoller, 52 Mo. 238; McGa/oock v. Woodlief, 20 How. [TJ. S.] 221; Richards v. Jade son, 31 Md. 250; Kimberly v. Henderson, 20 Md. 512. The case last cited has been approved by the Supreme Court of Missouri, in Woods v. Stephens, 46 Mo. 55, and the Kansas City Court of Appeals in Reiger v. Bigger, supra. Hyans v. Miller, 71 Gfa. 698; Hinds v. Henry, 26 N. J. Law, 328; Kerfoote v. Steele, 113 111. 610. IY. Proof having been made of a general custom among real estate dealers that commissions are hot claimed or paid by the seller where the purchaser refuses to carry out the contract, without the fault of the seller, such custom entered into the contract between plaintiffs and defendants, and defendants’ instruction to that effect should have been given. Hinds v. Henry, supra¡ Kodc n. Emmerling, 22 How. [U. S.] 69. I. If a real estate agent has authority to sell for “cash,” an agreement procured by him, in which it is provided that the “cash” shall be paid on a delivery of a deed to the property, is in substantial conformity with the agent’s authority to sell. Smith v. Allen, 86 Mo. 178, 190; Gross v. Brown, 31 Minn. 484. There is, therefore, no difference in this respect between the expression “Terms, $12,000 cash” in the defendants’ contract with plaintiffs, of February 3, 1887, and the contract defendants made with the purchaser Stone, the next day, February 4, in which they acknowledge the receipt of one thousand dollars, and state that, “eleven thousand dollars cash upon the delivery of warranty deed.” II. If an agent procures a purchaser who is ready, able and willing to enter into a contract to take the property on the terms on which the agent is authorized to sell the same and the principal himself modifies or changes the terms, the agent is entitled in a suit ón his contract to recover his commissions. Woods v. Stephens, 46 Mo. 555; Beauchamp v. Higgins, 20 Mo. App. 514; Nesshift v. Hellser, 49 Mo. 383. We claim that there is no difference between the terms on which the plaintiffs, Love and Lobb, were authorized to sell defendants’ property, and the contract of sale entered into by defendants and the purchaser Stone ; but even if there is any difference, it clearly appears that the contract of sale, as executed, was in accordance with the terms desired and required by the defendants, Owens and Colvert, and with the assistance of their attorney; and the closing of the contract was postponed from February 3, to February 4, and from Independence to Kansas City, for the purpose of allowing defendants to consult their attorney. III. A real estate agent has earned his commissions, and is entitled to recover them when he has procured a purchaser who enters into a written contract with the owner to purchase the property, provided the financial condition of the purchaser is such that the contract con be enforced by the owner against him, even although the purchaser refuses, after 'he has executed the contract, to take the property. Collins v. Fowler, 8 Mo. App. 588 ; Love v. Miller, 53 Ind. 294 ; Rice v. Mayo, 107 Mass. 550 ; Veazie v. Parker, 72 Me. 443; Leete v. Horton, 43 Conn. 219 ; Gross v. Broom, 31 Minn. 484 ; Gi'oss v. Stevens, 32 Minn. 472 ; Coleman’s Ex’r v. Meade, 13 Bush ( Ky. ) 358 ; Keys v. Johnson, 68 Pa. St. 42; Reynolds v. Tomkins, 23 W. Ya. 229, 235 ; Potvin v. Curran, 13 Neb. 303 ; Finnerty v. Fritz, 5 Col. 174; Watson v. Brooks, 8 Sawyer (U. S. C. C.) 316 ; Simonson v. Kissick, 4 Daly (N. Y. ) 143 ; Dttclose v. Cunningham, 102 N. Y. 678 ; Middleton v. Findla, 25 Cal. 79 ; Gonzales v. Brood, 57 Cal. 224 ; MoGrary v. Green, 38 Mich. 172 ; Sheppard v. Hedden, 5 Dutch. (N. J. Law) 345 ; Harris v. Begner, 9 Phil. 51 ; Fitch on Peal Estate Agency, 123; Wharton on Agency, sec. 328; Bailey v. C hapman, 41 Mo. 538; Carpenter v. Rynders, 52 Mo. 281. This rule is also recognized in Illinois and New Jersey in the two cases cited by defendants. Kerfoot v. Steele, 113 111. 610; Hinds v. Henry, 36 N. J. Law, 328. IY. A written contract for the purchase of land, binding both vendor and purchaser, is a sale within the meaning of an agreement to pay a commission to a broker upon sale of the land. It is not necessary that a deed shall have been executed and delivered. Rice v. Mayo, 107 Mass. 550; Chapin v. Bridges, 116 Mass. 105. Y. In order that a usage or custom may become a law of trade and be obligatory upon those contracting, in reference to matters to which it relates, it must be shown to be’certain, uniform, reasonable and so generally known and of such long existence that the parties must be presumed to have known of, and contracted with reference to it, or it must be shown that the parties actually knew of its existence. Clarke’s Brown on Usages and Customs, 158 ; Martin v. Mall, 26 Mo. 386 ; Walsh «. Transp. Qo., 52 Mo. 434; Ober v. Oar son, 62 Mo. 290 ; Ooolce v. Fislce, 12 Gray, 491. VI. A usage or custom is not admissible to contradict or vary the terms or the legal import of a contract or a settled rule of law. It cannot make the rights and liabilities of the parties to a contract other than they are at law. Clarke’s Brown on Usages and Customs, 82; Ober «. Carson, 62 Mo. 214; Cotton Press Co. v. <Slanard, 44 Mo. 71. Here the express agreement was to pay a commission on a sale of the property. If the law determined what constitutes a performance of the service by the broker, so as to entitle him to his commissions, then the custom, if one existed, cannot have any effect.