Hilbert v. Shilby

HOOD, Associate Judge. Appellants, three former owners of a restaurant business, appeal from a judgment against them in favor of a broker for a commission allegedly earned by him on the sale of their business. There was little or no conflict in the testimony. The following facts were not disputed. Hilbert, one of the owners of the business, listed the business for sale with the broker, the listing being designated as exclusive for ninety days. The broker advertised the business for sale and as a result one Richardson called on the broker with a view to buying and secured from him information as to terms, - details, price, etc. At this conference the broker arranged for Richardson to visit the restaurant and he later went there alone and talked with Wright, another of the owners, informing him of the previous conversation with the broker. Wright gave Richardson full information regarding the business. Thereafter Wright told the broker of Richardson’s visit and said Richardson was averse to dealing with .-brokers, that he (Wright) would proceed with the details of the sale and see that the broker’s commission was protected.1 The broker did not thereafter see Richardson or take any further part in the negotiations leading up to the sale. On his second visit to Wright, Richardson said the amount of work and hours required to conduct the business were too much for a man of his age, and Wright then inquired if Richardson would be interested in buying as a partner. Richardson expressed interest and Wright introduced him to one Smith. Richardson and Smith arranged to buy the business but the sale was not completed because of Smith’s inability to furnish the cash necessary on his part. Thereafter Smith introduced Richardson to one Rorer, who became interested, and Richardson and Rorer as partners purchased the business. The period of time between Richardson’s interview with the broker and the purchase of the business by Richardson and Rorer was approximately one week. On the facts above set forth the trial judge found that the broker was entitled to his commission. Appellants contend that the record does not support a finding by the trial judge that the broker produced in Richardson a purchaser ready, able, and willing to buy. Under the circumstances of this case, we think that is unimportant. The vital question here is whether the sale was effected through the agency of the [857] broker as the procuring cause. If so, he was entitled to his commission; and we think the undisputed evidence supported— perhaps compelled — a finding in his favor on this ground. Appellants concede that the broker performed services of value and is entitled to fair compensation, but argue that full commission on the sale gives the broker more than fair compensation. The basis for this argument is that the only prospective buyer secured by the broker was Richardson, whereas the sale was made to Richardson and Rorer as partners, and Rorer was wholly unknown to the broker. Had this been a case where the broker, after first interesting Richardson, abandoned further efforts, there might be merit to appellants’ argument. But this is not such a case. Here the broker was engaged to find a purchaser. He found a prospective purchaser definitely interested in buying; he furnished the prospect with information and arranged for him to see the business and talk with the owners. The owners, being fully informed of the broker’s efforts, talked with the prospect and reported to the broker the results of such talk. No agreement for sale had then been reached but the owners did not urge the broker to continue his efforts. Instead, in effect they ordered the broker to do nothing further, saying that they would proceed to deal directly with the prospect and that the broker’s commission would be “protected.” Under these circumstances we think it is immaterial that the sale was not made to Richardson alone, but to him and another. The owners definitely and knowingly appropriated the efforts of the broker and at the same time denied him an opportunity to bring the negotiations initiated by him to a successful conclusion. The trial court was justified in finding that the broker was the procuring cause of the sale and entitled to his commission. Cf. Henderson v. Porter, D.C.Mun.App., 52 A.2d 779; Lady v. Realty Associates, Inc., D.C.Mun.App., 31 A.2d 875. Affirmed. Footnotes [1] Hilbert’s'authority to list the business with the broker and Wright’s authority to deal with the broker are not questioned.