Gantt v. Harper

*399 MR. JUSTICE GALEN delivered the opinion of the court. This action was instituted by the plaintiff to recover from the defendant the sum of $1,750, alleged to be due the plaintiff under a brokerage contract for the sale of certain real estate in Missoula county. Upon issue joined the cause was regularly brought on for trial before a jury. At the conclusion of the plaintiff’s case the court sustained the defendant’s motion for a nonsuit, and thereupon entered judgment dismissing the action and awarding costs to the defendant, from which the plaintiff has appealed. In disposition of the case but two questions are necessary to be considered, viz.: (1) Did the court err in granting a nonsuit; and (2) Did the court err in the exclusion of certain evidence ? 1. From the testimony it appears that on Saturday afternoon, June 25, 1927, the defendant executed a memorandum in writing reading as follows: “Missoula, Montana, June, 27, 1927. “For the consideration of one ($1.00) dollar, I this day give E. D. Gantt of Missoula, Montana, an option on our ranch consisting of thirty-six hundred forty (3,640) acres, formerly known as the Blanchard ranch, consisting of [here property is described.] All of the above thirty-six hundred forty (3,640) acres at a price of thirty-five thousand ($35,-000.00) dollars cash, less a commission of five per cent. (5%). The above option holds good for thirty days from the above date. “H. E. Harper.” *400 On the following day, Sunday, June 26, the plaintiff called upon •'William Boyd, and the latter agreed to purchase the property for the sum of $35,000, to be paid in cash or upon terms, and thereupon gave the plaintiff his check dated June 27, 1927, for the sum of $500, payable to order of the defendant, to bind the bargain. The next day, Monday, June 27, the defendant and his brother, Robert W. Harper, visited the plaintiff’s office in Missoula, and thereupon jointly executed a written agreement reading as follows: “This agreement made and entered into this 27th day of June, 1927, by and between H. E. Harper, - Harper and -Harper, parties of the first part, and E. D. Gantt, party of the second part, all of Missoula county, Montana. Parties of the first part represent themselves to be the owners of the property hereinafter described and duly authorized to sell and party of the second part agrees to buy the real estate in Missoula county, Montana, commonly known as the Blanchard ranch, comprising thirty-six hundred forty acres (3‘,640) more particularly described as follows: [Here land is described.] Party of the second part agrees to pay for said property the full sum of thirty-five thousand dollars ($35,000.00), as follows, to wit: Five hundred dollars ($500.00) cash, upon the signing of this agreement, the receipt whereof is hereby acknowledged by the parties of the first part; nine thousand five hundred dollars ($9,500.00) at the time when parties of the first part shall furnish party of the second part an abstract of title showing marketable title to said property resting in parties of the first part, free of liens and incumbrances of every kind and nature, except taxes levied during the year 1927, said abstract to be furnished within ten days from date hereof; the balance of the purchase price shall be paid at the rate of three thousand dollars ($3,000.00) per year, said time to run from the date of the delivery of a warranty deed to party of the second part by parties of the first part. Deferred payments shall draw interest at the rate of six (6) per cent, per annum, payable annually. The en *401 tire balance may be paid at any time after the delivery of the deed to said property and interest shall thereupon cease. Party of the second part agrees to deliver to parties of the first part bankable notes for said deferred payments.” There is no question raised as to the plaintiff having secured a purchaser of the property nor as to the ability of the intending purchaser to pay for it in cash, or on the terms set forth in the second agreement. A third brother, Sterling Harper, had an interest in the property, and he refused to agree to the sale thereof, although the defendants Howard E. Harper and Robert W. Harper were willing to conclude the sale on the basis of the terms stated in the second contract. Sterling Harper, on or about July 23, 1927, offered the plaintiff the sum of $100; he was then in the company of the defendant who, at the suggestion of the former thereupon delivered to plaintiff a notice in writing reading as follows: “Missoula, Montana, July 23, 1927. “Mr. E. D. Gantt, “Missoula, Montana. “Dear sir: This is to notify you and you are hereby given notice that those certain instruments in the nature of options or contracts for the sale of 3,640 acres of land, formerly known as the Blanchard ranch, consisting of the following described lands: [property described] are hereby annulled, revoked and avoided, and that you have no right to either sell or purchase the said property under and by virtue of the said instruments. “Robert W. Harper, “Howard E. Harper.” Upon such evidence did the plaintiff make out a prima facie case entitling him to have his case submitted to the jury ? Our statute of frauds requires a note or memorandum in writing, subscribed by the party to be charged, or his agent, as a condition precedent to recovery of a broker’s commission upon an agreement authorizing or employing an *402 agent or broker to purchase or sell real estate. (Sec. 7519, Rev. Codes 1921.) This statute has frequently been considered and applied by this court and its provisions are held to be mandatory (Skinner v. Red Lodge Brewing Co., 79 Mont. 292, 256 Pac. 173) as to the original agreement, as well as any subsequent modification in the terms thereof (Skinner v. Red Lodge Brewing Co., supra.) Here the two agreements signed by the defendant are consistent in terms and should be considered together as constituting the memorandum in writing fixing the terms of the brokerage contract subscribed by the defendant, the party to be charged. In the absence of a contract containing different provisions, the broker earns his commission whenever within the time limit he produces a purchaser ready, willing, and able to buy the property in compliance with the terms of the brokerage agreement. (Laux v. Hogl, 45 Mont. 445, 123 Pac. 949; Shober v. Dean, 39 Mont. 255, 102 Pac. 323; Shober v. Blackford, 46 Mont. 194, 127 Pac. 329; Lingquist v. Loble, 62 Mont. 166, 204 Pac. 170; Apple v. Henry, 66 Mont. 244, 213 Pac. 444.) The evidence before the court makes out a prima facie case entitling the plaintiff to recover the agreed brokerage commission, and the court erred in granting a nonsuit. 2. During the course of the trial the plaintiff offered in evidence a letter addressed to the defendant, reading as follows: [Letter-head of E. D. Gantt.] “Missoula, Montana, July 6, 1927. “Mr. H. E. Harper, “Greenough, Montana. “Dear Howard: My client was in town yesterday, and I am writing to let you know that we are ready to go through with the ranch deal exactly as the option you signed under date of June 27. In other words, will pay spot cash as soon as you furnish a suitable abstract and deed showing clear title. This would make the deal exactly as the option *403 calls for. Just as soon as yon are ready I would be very glad to close the deal according to the option. “Yours truly, “E. D. Gantt.” It was by the court excluded upon objection made thereto by counsel for the defendant as follows: “We object to the offer upon the ground, first, that it is not an acceptance of the offer made by the defendant in this case; in the second place, the offer was simply an option of the land, and the •acceptance of it imposes two conditions that are not contained in the offer, the first that he shall furnish an abstract and the second that he shall furnish a deed showing clear title to the property. I think this is the whole case right here.” Counsel was correct; this is the determinative question of law in the case, but on defendant’s objection it was excluded from the evidence. Notwithstanding, it is argued by the defendant’s learned counsel that such acceptance varied the terms of the memorandum subscribed by the defendant to such an extent as to deprive plaintiff of right to recover the brokerage commission agreed to be paid. If this contention be upheld, it would appear needless to remand the case for a new trial simply to supply the evidence so rejected. The modified agreement made by the defendant was to furnish an abstract of title showing “marketable title” to the property, “free of liens and encumbrances of every kind and nature, except taxes levied during the year 1927.” This offer of acceptance calls for “a suitable abstract and deed showing clear title.” Counsel for the defendant, in his very able brief, says: “While we concede that, under the instrument in question, we were to furnish him [the plaintiff] (a) all the title we had, and (b) that it was to be a good title, or even a marketable title, were we under any obligations, under this particular contract, to furnish him either (1) a title in fee, or (2) a clear title?” By the express terms of his contract the defendant interprets fully the meaning intended to be given to the words “market *404 able title” in. the contract. In effect he says it is to be understood as meaning title to the property, “free from liens and encumbrances of every kind and nature.” Is that not the equivalent of “clear title”? From our examination of the authorities, and the works of lexicographers, we are of opinion that they amount to the same thing. By his agreement the defendant undertook to deliver a warranty deed to the land upon payment of the agreed purchase price, and thereby a fee-simple title was presumed to pass by the grant. (Sec. 6866, Rev. Codes 1921.) “Every estate of inheritance is a fee, and such estate, when not defeasible or conditional, is a fee simple or an absolute fee.” (Id., sec. 6724.) “In modern English tenures, ‘fee’ signifies an estate of inheritance, being the highest and most extensive interest which a man can have in a feud; and when the term is used simply, without any adjunct, or in the form “fee simple,” it imports an absolute inheritance clear of any condition, limitation or restriction to particular heirs, but descendable to the heirs general, male or female, lineal or collateral. 2 Bl. Comm. 106.” (Black’s Law Dictionary, 2d ed., p. 486.) A fee “is an absoute estate in perpetuity, and the largest possible estate a man can have, being in fact, allodial in its nature.” (Black’s Law Dictionary, 2d ed., p. 487, and cases there cited.) And a fee-simple title is “a freehold estate of inheritance absolute and unqualified. It stands at the head of estates as the highest in dignity and the most ample in extent; since every other kind of estate is derivable thereout, and mergeable therein. Wharton.” (Black’s Law Dictionary, 2d ed., p. 487.) “It is called fee-simple, that is, ‘pure,’ because clear of any condition or restriction to particular heirs.” (Haynes v Bourn, 42 Vt. 686.) A fee-simple title is the largest estate known to the law. (Brackett v. Ridlon, 54 Me. 426.) The words “marketable title” are the equivalent of ‘good title,” and mean such as can be sold to a reasonable purchaser, or mortgaged to a person of reasonable prudence, as *405 security for a loan of money. (Fagan v. Hook, 134 Iowa, 381, 105 N. W. 155, 111 N. W. 981.) Taken alone, it is generally held to mean “a title concerning which there is no fair and reasonable doubt; such title as a court of equity would compel a purchaser to accept on a bill by the vendor for specific performance.” (Maupin on Marketable Title to Real Estate, 3d ed., p. 708; 5 Words and Phrases, First Series, pp. 4388, 4389, and cases there cited; Warvelle on Abstracts, 4th ed., see. 605.) It is title of such character “as assures to the purchaser the quiet and peaceful enjoyment of the property and one which is free from encumbrances. (Barnard v. Brown, 112 Mich. 452, 67 Am. St. Rep. 432, 70 N. W. 1038.)” (Ogg v. Herman, 71 Mont. 10, 227 Pac. 476.) Ajid “a clear title means that the land is free from encumbrances.” (Ogg v. Herman, supra.) Webster’s definition of the word “clear” as here employed is “free from encumbrance, obstruction, burden, limitation,” etc., and the word “title,” in the sense here used, “the union of all the elements which constitute ownership, at common law, divided into possession, right of possession and right of property, the last two now, however, being considered essentially the same.” In our opinion, the words, “clear title,” as employed in the plaintiff’s letter, denied admission in evidence, means title to the property free from any encumbrance, burden or limitation, uniting all the elements constituting ownership, including right of possession and right of property — i. e., fee-simple title. Such was in effect the contract upon which the defendant agreed to pay a brokerage commission on the sale of the property, and the tender of performance was complete and in accordance with the defendant’s terms. The only case we have found bearing upon the subject of “clear title,” other than our own case of Ogg v. Herman, supra, is that of Robert v. Bassett, 105 Mass. 409, referred to in the Ogg Case, wherein it is held that a contract to convey “by a deed conveying a clear title” to a parcel of land owned *406 by tbe vendor is not satisfied by tendering a warranty deed to the property where there is an encumbrance on the land. This is the only case cited by counsel for either of the parties interpreting the meaning of the words “clear title,” and it would appear to justify our interpretation of the defendant’s contract before us. It will be noted the plaintiff’s letter of acceptance was dated July 6, 1927, long before the defendant’s attempted withdrawal of his agreement to sell the property by letter dated July 23, 1927. For the reasons stated, the judgment is reversed and the cause remanded to the district court of Missoula county for a new trial. Reversed and remanded. Mr. Chief Justice Callaway and Associate Justices Myers, Stark and Matthews concur. Rehearing denied May 25, 1928.