Antill v. Lorah

Hovey, J. — Appellant sued respondent for a broker’s commission and was denied recovery. The undisputed facts are that respondent listed her property with several brokers, including appellant, retaining the right to make a sale direct and pay no commission if the broker was not the procuring cause. The property consisted of furniture in an apartment house and a lease, and the listed price was $14,000. Respondent entered into a preliminary contract with a woman named Ashton for the sale of the property for $13,400, with the express understanding, as respondent claims, that there was no broker’s commission to pay and that the parties were dealing directly with each other. When the time came to close the deal, appellant appeared and claimed his commission. The sale was not consummated and the money deposited was returned, with the exception of $25 retained by respondent by consent of the proposed purchaser to reimburse her for attorney’s fees. It is not disputed that the man who first talked to respondent first called himself Overfield, and that this man had inserted an advertisement for the purchase of a property similar to respondent’s, and respondent claims that she answered this advertisement by letter. When Overfield visited respondent with the proposed purchaser, Mrs. Ashton, he represented himself as the husband of the latter and said that his name was Ash-ton. Appellant claims that the same man came to him in the first place, calling himself Lawrence, and that appellant first arranged for the sale, and both Over-field and Mrs. Ashton testified by deposition that appellant was the procuring cause of the proposed sale. On the trial, however, respondent produced a letter from Mrs. Ashton offering to refuse to testify for appellant if she would pay the sum of $25. [682] We think it cannot be disputed that appellant never produced a purchaser ready to pay the full price of $14,000, and we think the court was further justified from the testimony in concluding that, when respondent made the agreement for $13,400, she had no knowledge that appellant claimed to have had anything to do with the sale, and that she made it upon the express understanding and condition that she was to receive this sum net to her. It is a well settled principle of law that, in order for the broker to recover, one of two things must occur; either he must produce a purchaser able and willing to buy at the price for which the property is listed, or he must have, been the procuring cause of a sale which is consummated, even though the parties may decide to vary the terms. 9 O. J. 587, 603. We think the trial court rightly concluded in this case that appellant had done neither. The judgment is affirmed. Parker, C. J., Main, Holcomb, and Mackintosh, JJ., concur.