E. A. Strout Co. v. Hubbard

Savage, J. Action to recover commissions on the sale of a farm. The plaintiff claimed two hundred dollars. The verdict was for the plaintiff for thirty-six dollars. The case comes up on the plaintiff’s exceptions and a motion for a new trial. The evidence is made a part of the bill of exceptions, and in order properly to inquire into the merits of the exceptions it is necessary to ascertain the facts to which they relate, or rather such facts, favorable to the plaintiff, as the jury would have been warranted in finding from the evidence. It is admitted that on November 30, 1906, the defendant made and signed a written contract with the plaintiff of the following tepor, so far as material to this case: "The E. A. Strout Farm Agency. Boston-New York. I hereby place the property, real and personal, of which a description has been given, in your hands for sale. If the same is sold to any party through your influence by advertisement or otherwise, I will pay to you or your order a commission of all you get in excess'of $1800, clear to me. In case I should sell the property to your customer for less than $2,000, I will pay to you or your order a commission of two hundred dollars; or if the sale exceeds $2000, ten per cent on the full amount of the sale. The commission to be due and payable the day the sale is effected. Should I withdraw the said estate from your hands before you [368] have effected a sale, I will, in consideration of. your having listed the property, pay you forthwith $20.00, or two percent of the asking price, if above $1000. Should the estate be sold either before or after withdrawal to a customer to whom you or your agents have recommended it, or who has learned that it was for sale, directly or indirectly, through you, your agents or your advertisements, I will pay your commission as agreed.” The plaintiff in two counts has declared on the clauses in the contract whereby the defendant agreed to pay a commission, in case he sold a farm to a customer of the plaintiff, or in case he should sell the farm before or after withdrawal to a customer to whom the plaintiff or its agents had recommended it, or who had learned that it was for sale, directly or indirectly, through the plaintiff or its agents or advertisements. The plaintiff did not sue for the $36 for which the verdict was returned. At the same time the defendant signed and delivered to the plaintiff’s agent a written description of the estate. Thereupon, the plaintiff "listed” the defendant’s farm. That is to say, it included a condensed description of the farm in a list or catalogue of estates which it had for sale, which it published and sent to its agents in Bangor and Newport in the early part of 1907. It also sent pictures of the buildings, from a photograph furnished by the defendant. Afterwards, by a letter dated April 8, 1907, the defendant withdrew his farm from the plaintiff’s hands, and, a week later, sold and conveyed it to one Blanchard for $1820. It was admitted that the plaintiff recommended the farm to Blanchard, obtained an offer of $1700 from Blanchard and brought him to the defendant’s house on April 3, 1907. There was testimony that the plaintiff’s agent then communicated Blanchard’s offer to the defendant, who declined to accept it. It was also admitted that Blanchard knew that the farm was for sale previous to its being recommended by the plaintiff. The defendant testified that Blanchard asked him in February, 1907, what he would take for the farm, if he would take $1500, and that he declined to sell for that price. Blanchard testified that [369] previous to this conversation he knew the farm was "listed,” that is, in the plaintiffs agency, as we interpret the testimony. It also appears that Blanchard had lived only a mile or two away, and knew the farm well. Further than this, the jury would have been warranted by the evidence in finding that about April 1, 1907, Blanchard called on the plaintiff’s agent in Bangor with a view to the purchase of a farm somewhere; that the agent showed him among others the description and picture of the defendant’s place; that this agent recommended it and advised him to see the plaintiff’s agent in Newport, who would show him the defendant’s farm and another one of which he had heard, and to which he was inclined; that he went to Newport and saw the agent there; that that agent showed him the description of the Hubbard farm, and recommended it; that he then offered $1700 for it; that the agent took him to the defendant’s house to see if a trade could be made; that while there he and the defendant tried to negotiate a trade, but disagreed upon the price, and that the defendant, five days afterwards, disregarding the plaintiff’s agents in Bangor and Newport, whom he knew, and with whom thus far he.had been in communication, sent his letter of withdrawal direct to the plaintiff’s New York office. From these facts, we think it would have been competent for the jury under proper instructions to find that Blanchard was the plaintiff’s "customer,” and that the farm was sold to a customer to whom the plaintiff or its agents had recommended it, or who had learned that it was for sale, indirectly, at least, through the plaintiff’s advertisements. In either case, we are left to inquire whether any right to commissions accrued to the plaintiff by reason of the sale by defendant to Blanchard after the letter of withdrawal. And the answer will depend upon a construction of the contract which the defendant made, and not upon the rights which arise by implication when one leaves his property in the hands of a broker for sale, without mention of specific conditions, as between owner and broker. The contract was a comprehensive one. It fully protected the rights of the plaintiff in every contingency. It may seem a hard [370] and uneven contract, but it was one which the parties had a right to make, and it must be enforced according to its terms. The first clause in the contract relating to commissions seems to contemplate a sale directly through the plaintiff, by its bringing a customer ready and willing to pay a price of $1800 or more, in which case the plaintiff was to have all in excess of $1800. The next clause contemplates that the defendant might himself sell the farm for any price he pleased to a customer of the plaintiff, that is, one whom the plaintiff had interested in the farm, to whom it had recommended it, and whom it had produced to the defendant as a purchaser at some price. Such a person would fairly be the plaintiff’s "customer.” In that case, the plaintiff was to be entitled to a commission of $200, whatever the selling price might be. There was another contingency, and one which may have happened in this case. After the plaintiff had thus produced a customer, after it had directed his attention to this farm, and perhaps specifically away from others, after it recommended the farm and advised its purchase, after the customer had begun to nibble at the hook, the defendant might withdraw the farm from the plaintiff’s agency, as provided in another clause in the contract, and thus deprive the plaintiff of the $200 commissions. This contingency was provided for in the other clause which we have referred to, which was to the effect that if the farm should be sold by the defendant after withdrawal to a customer to whom the plaintiff had recommended it, or who had learned that it was for sale, directly or indirectly through the plaintiff, the defendant should pay a commission of $200. And under this clause the plaintiff now bases its right to recover. We have already defined what is meant by "customer” of the plaintiff, as applied to this case. It will be noticed that the defendant agreed in the last named contingency to pay a commission in case of sale to a customer to whom it had recommended the farm, or who had learned that it was for sale through the plaintiff. The agreement was not limited to a sale to a customer whom the plaintiff had influenced to purchase. These are distinct propositions : [371] Now with the case in this situation, and under this contract, which we have construed, the plaintiff asked the court to give the following instruction to théjury : — "If the listed place was sold either before or after withdrawal to a customer to whom the plaintiff or its agents in good faith recommended it, then the defendant is liable for a commission of $200, whether such sale was effected in whole or in part by reason of such recommendation or not.” The Judge declined to give this instruction, but instead instructed the jury as follows: "Was Mr. Blanchard influenced in any way, by any act, conversation, without which he would not have purchased that place, to purchase it of Mr. Hubbard? He may have looked at the place before, but had he without the influence of the Strout Company or its agents made up his mind to purchase it, or did he without their influence, and without what was said by them finally purchase this place ? And that is the nub of this case, in my opinion for your determination.....It is for the plaintiffs to satisfy you that it was by reason of their influence, in some way and in some degree, and without which it would not have been sold to Mr. Blanchard, before they are entitled to a verdict for more than the $36 which I have already alluded to.” The instruction given injected into the contract an element, which as we have seen, the parties did not put into it, and an element onerous and prejudicial to the contract rights of the plaintiff. By the contract it was sufficient to show that the plaintiff sowed seed, and the defendant reaped his harvest, where the seed had been sown. It was not incumbent on the plaintiff to trace, the development of the seed and the growth of the plant. It was not necessary to show even that the harvest came from the plaintiff’s seed. For such was not the contract. The requested instruction, we think, correctly stated the proper rule under this contract, and it should have been given. As the plaintiff’s exception to the instructions given and to the refusal to instruct as requested must be sustained, it is unnecessary to consider the motion for a new trial. Exceptions sustained.