Hutson v. Yerkes

SOMERVILLE, J. While the contract by which plaintiffs were authorized by defendant to sell his land for $18,000 net to him said nothing about the compensation to be received by plaintiffs in case of such a sale'we think the clear implication was that plaintiffs would be entitled to have for their services whatever they could exact from the purchaser in excess of the net price stipulated. “Where a real estate agent employed to sell property at a net suih to the owner procures a purchaser ready, willing, and able to buy at a price in excess of the net sum to be received by the owner, and before the sale can be closed, and consummated by the agent the owner himself sells to the purchaser, with knowledge that the 'agent has exhibited the property to him and been dealing with him, the owner will be held liable to the agent for a commission equal to,the difference between the net price he was to receive, and the price,the purchaser was ready, willing, and able to pay the agent.” 9 Corp. Tur. 581, § 79, note 54 (b); Church v. Dunham, 14 Idaho, 776, 98 Pac. 203; Baker v. Murphy, 105 Ill. App. 151; Sill v. Ceschi, 167 Cal. 698, 140 Pac. 949. But in this case plaintiffs have not brought themselves within the operation of that rule. Their brokers’ ’ contract with defendant neither expresses nor implies anything as to the manner of collecting their compensation. It might have intended either that the purchaser would pay to the vendor the whole amount,, including the excess over $18,000, to be by the vendor paid over to the brokers, or it may just as well have intended that the brokers should look to the purchaser directly for the payment, and that the vendor should have nothing to do with it. The testimony of plaintiffs, as shown by the extracts quoted in the statement of facts above, strongly confirms the latter theory, and, indeed, in their statement of the case in their brief, counsel for appellants say that “Calvin agreed to pay Hutson & McCluskey a compensation or commission to the amount of $800.” Further confirmation is found in the fact that in McCluskey’s written memorandum or contract of sale, as he calls it, ho certified that he had sold the property “for $18,000.” So, also, the. correspondence between Yerkes and McCluskey shows plainlv that only the $18,000 should he paid to Yerkes, and that Yerkes had nothing to do with the collection of the $800 for the brokers. After McCluskey had made the deal with Calvin, it appears from the testimony of Mr. Steele, who was acting as attorney for Yerkes, that Calvin insisted upon a guaranty that the property would not be redeemed from a mortgage foreclosure sale, under which Yerkes had acquired the title, and that Calvin refused to close the deal without such a guaranty. It appears also that a controversy arose between S. L. Yerkes and McCluskey as to the payment of the taxes for 1917 and 1918, Yerkes insisting that his $18,000, net, meant exclusive of those taxes, and on January 2,1918, he wired to McGluskey giving him 48 hours to close the trade with Calvin, terms $18,000 cash net, purchaser to pay -taxes for those years. Receiving no answer, Yerkes again wired to him on January 4, asking his intentions as to taxes mentioned, and 'McCluskey’s reply' on the same day made no response as to that feature. Thereupon Yerkes wired withdrawing all propositions made by him to McCluskey, and Yerkes then proceeded on his own initiative to put the deal through with Calvin and his associates, the consideration agreed on and paid being $18,000. There was a great deal of other testimony, with some material conflicts, but, under all the evidence, our judgment inclines to the view that the plaintiffs do not make out a case of liability against this defendant. Let the judgment be therefore affirmed. Affirmed. ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.