Martin v. . Holly

Shepherd, J. (after stating the case). It was ingeniously contended by the learned counsel for the appellant, that the action, being founded on a special contract, the conduct of the plaintiff in demanding and threatening to sue for a part of the contract price, and his reception of the same after a sale of the Piney Woods timber, was, in effect, a rescission of the agreement, and that, for this reason, he is not entitled to recover. The plaintiff denied that b.e was discharged before he had rendered the services, and as to the part payment, he testified that “ he and the defendant did not differ about whether he ought to have had commissions on the first sale.” We cannot conclude, ns a matter of law, that under these circumstances the part payment was, ipso facto, a rescission of the contract. The issue was general, embracing both causes of action, and no instructions upon this point were requested. It is, therefore, only necessary for us to enquire whether there was error in the instructions as given by his Plonor. The plaintiff’s counsel admitted here that the defendant did in fact discharge him, and revoke his power of attorney. But he insists that when this was done, the plaintiff had already performed services in pursuance of the contract, which resulted in a sale of the timber. *39 There is no question but that an agency like this may be revoked at any time, but such revocation cannot defeat the right of the plaintiff to compensation for the services rendered in pursuance of the employment. “ Where a broker, authorized to sell at private sale, has commenced a negotiation, the owner cannot, pending the negotiation, take it into his own hands and complete it, either at or below the price limited, and then refuse to pay the commissions.” Keys v. Johnson, 68 Penn., § 42. Again, “ a broker becomes entitled to his commissions whenever he procures for his principal a party with whom he is satisfied, and who actually contracts for the purchase of the property at a price acceptable to the owner.” Gentworth v Luther, 21 Barb., 145; Kersey v. Garton, 77 Mo., 645. “ An agent employed to sell real estate, in finding a purchaser, and bringing him and his principal into communication, and setting on foot negotiations which result in a sale, cannot be deprived of his . right to compensation by a. discharge prior to the consummation of the sale.” Gillet v. Carum, 7 Kan., 156. The principles thus declared fully sustain the charge of his Honor, and we are unable to see any grounds for a new trial. The case of Brookshire v. Brookshire, 8 Ired., 77, cited by-defendant, is in no way inconsistent with the foregoing authorities. It only decides that a power of attorney under seal may be revoked by parol. No error.