Crowell v. . Parker

Walker, J., after stating the case: It is not necessary that we should set forth even the substance of all the evidence. The case, as we view it,, turns upon the meaning of the contract between the plaintiff and J. M. Parker and the nature of the transaction between J. M. Parker and L. S. Shirey, who acted, it seems, for himself and J. M. Cook. We will assume, for the sake of discussion, that the plaintiff by his efforts and influence brought the parties, Parker and Shirey, together to make their trade in regard to the land. It appears that the first negotiations for a sale by Parker to Shirey and Cook at $5,000, the amount mentioned in the plaintiff’s contract, fell through, and afterwards, but before the contract between plaintiff and Parker had been terminated by notice, Shirey agreed orally to buy the land at $4,500, payable in certain installments. On 9 November, 1912, Parker deposited with M. J. Harris, assistant cashier of a bank in Albemarle, two deeds to Cook and Shirey, duly executed and probated; one for the land and the other for the timber on the dower tract containing 108 acres, and Harris delivered to Parker a written receipt for the same, signed by him and reciting that the deeds, were to be held in escrow, upon the condition that if Cook and Shirey paid $2,000 by 1 January, 1913, and .secured the balance of the purchase money ($2,000) by a mortgage on the land, the deed of Parker should be delivered to them. The paper also recited that the grantors and grantees had agreed to the arrangement set forth by it, but neither the grantors nor the grantees signed the receipt, nor is there any evidence that Shirey or Cook authorized it to be signed for them, or that they even saw it at the time it was given. It was merely a receipt which M. J. Harris gave J. M. Parker for the papers, stating the purpose for which they were left with him. The evidence, in no reasonable view of it, can be considered as showing that Shirey and Cook were bound in writing by an agreement with Parker to buy the land. As against them, the contract was legally unenforcible. This being so, what are the relations of the parties, and the rights incident thereto ? It is plain that the defendant, though he afterwards sold the property, that is, in April, 1913, has received nothing from that sale which was *395 produced by the effort or agency of tbe plaintiff, and we do not understand that anything is claimed as accruing to the plaintiff from it. It may also be said that the result from the agency of the plaintiff in his attempt to sell the property to Shirey and Cook has been, in one view of the evidence, unavailing, if not entirely unsuccessful. The defendants have reaped no benefit from it, but have lost valuable time in their fruitless efforts to come to a binding agreement in respect to it. The law seems to be well settled that the broker’s right to commissions depends upon the successful performance of his services, and nothing is to be paid unless a bargain is effected. A prospective or contemplative agreement is not sufficient. The negotiations must culminate in the production of a person ready, able, and willing to buy, if the vendor will sell to him, or who will enter into an enforcible agreement for the purchase of the property. The subject is fully considered in Lunney v. Healey, 44 L. R. A. (O. S.), 593, to which there is an elaborate and exhaustive note collecting and reviewing the cases. It can make no difference, however, if the broker, by his efforts, has brought forth a purchaser able, willing, and ready to accept the principal’s offer of sale, that the specific terms of the contract of sale are arranged by the latter; but the broker must show, as has been said, that he effected either a completed sale or an agreement to purchase which is susceptible of enforcement against the purchaser. We do not think the evidence in this case was such or so conclusive as to authorize the instruction which was given by the court upon the second issue. There was, on the contrary, evidence from which a jury might reasonably find that the plaintiff had not produced a person ready, able, and willing to buy the land, or to make a binding agreement to do so. The negotiations between the parties resulted only in a conditional sale, in the nature of an option, that Shirey should deposit $500, and upon his paying $2,000 on or before 1 January, 1913, and then executing a mortgage upon the land for the balance, the escrow should be delivered to him. But this Shirey did not do, nor was he ready, able, and willing to comply' with this condition at the appointed time, nor has he since made any tender of the money or the mortgage, but has altogether withdrawn himself from this transaction. It is trae that the plaintiff took the deed from the clerk on 2 January, 1913; but this he may have done because Shirey had failed to appear and perform the conditions of the agreement. Parker could not compel Shirey to perform, for the contract, as to him at least, was oral. We do not hold that the plaintiff is not entitled to recover, as the facts are not so clearly presented as to justify such a ruling; but what we must be understood as deciding is that there is evidence from which the jury may infer that there was no sale, according to the terms of plaintiff’s agreement. *396 Without discussing the authorities in detail, we cite the following as pertinent to the case: Trust Co. v. Adams, 145 N. C., 161, 166; Levy v. Kottman, 32 N. Y. Suppl., 241, where the cases are collected; Diamond v. Hartley, 55 N. Y. Suppl., 994; Kronenberger v. Bierling, 76 N. Y. Suppl., 895; McPhail v. Buell, 87 Cal., 115; Wilson v. Mason, 158 Ill., 204. The second case above cited closely resembles this one in some of its' features. But it must be borne in mind that if an agent, who is employed to sell real estate, finds a purchaser who is ready, able, and willing to purchase it on the authorized terms, his right to commissions will not be impaired by the default of his principal in refusing to consummate the sale. The seller cannot complain if he is made to pay commissions because, by his own fault, he has lost a bargain upon his own terms. Parker v. Walker, 86 Tenn., at p. 569, where it is said: “To procure a purchaser of real estate not only implies that the purchaser shall be one able to comply, but the further idea, that the seller and the purchaser must be bound to each other in a valid contract. To this we must agree. An oral agreement upon the part of the purchaser would not be a valid agreement; and if he refused to complete the sale after such oral agreement, without fault upon the part of the seller, the obligation of the broker would not be fulfilled, and he could .not recover his commissions. If, on the other hand, the purchaser was not only able, but-willing, to complete the sale, and the vendor then refused to sell, or is unable to fulfill the terms upon his part or make a good title, or the trade falls through for any other default upon the part of the seller, the commissions are nevertheless earned. Addison on Contracts (Morgan’s Ed.), vol. 2, sec. 931; Cooke v. Fiske, 12 Gray, 491; Tooms v. Alexander, 101 Mass., 255 (s. c., 3 Am. Rep., 349); Mooney v. Elder, 56 N. Y., 238.” Sec, also, Aigler v. Carpenter P. L. Co., 51 Kansas, 718. What we have stated is, of course, based entirely upon a consideration of the terms of the agreement between the plaintiff and Parker, which have been set forth. There is evidence that this contract has not been complied with. Whether the sale fell through by reason of the fault of the owner of the x^roperty, or it failed because the purchaser was not able, ready, and willing to buy, is for the jury to determine upon all the evidence and under proper instructions as to the law applicable thereto. The eases on the subject in our Reports have very little or no bearing upon the precise question raised in this appeal, as the sales in those cases were generally consummated. Trust Co. v. Goode, 164 N. C., 19, relied on by the plaintiff, was a case of that kind, and to the same effect are the authorities cited therein. It is undoubtedly true, as decided in those cases, that a principal cannot take the benefit of his broker’s ser *397 vices and refuse to pay for them; but that is not the only question here. Aigler v. Carpenter, supra; Pehl v. Fenton, 119 Pac. Rep. (Cal.), 400. There was error in the charge of the court, and a new trial therefore is granted. New trial.