Parker v. Compton

CARNEY, Presiding Judge. The complainant below, Bettye Parker, d/b/a Bettye Parker Realty Company, has appealed from a decree of the Chancery Court dismissing her suit against M. L. Compton and wife, Patricia Compton, to recover a commission of $1,620.00 for the sale of the Comptons’ home in Chattanooga, Tennessee. Complainant also sought treble damages under the authority of T. C.A. Section 47-15-113 against the defendant, Ronald G. Rogers. She averred that Mr. Rogers, the purchaser of the home, had procured M. L. Compton and wife to breach the written contract with Bettye Parker giving complainant the exclusive right to sell the home. The Chancellor dismissed complainant’s suit against defendant Rogers as well as the Comptons. Mr. Compton was being transferred by his company and first tried to sell his home without the services of a realtor. He advertised the same in the Chattanooga papers. Defendant Ronald G. Rogers contracted to buy the home from Mr. and Mrs. Compton at a price of $28,019.55 of which amount he was to pay $6,400.00 in cash and Rogers was to assume a mortgage for the balance. The Title Guaranty & Loan Corporation of Chattanooga prepared the closing papers but Mr. Rogers was unable to raise the $6,400.00 down payment [709] on the designated date for closing. He was released of his contract by Mr. Compton. Shortly thereafter in May, 1970, Mr. and Mrs. Compton listed their home for sale with the complainant, Bettye Parker, at her solicitation. On June 24, 1970, a new contract was entered into between Mr. and Mrs. Compton and Bettye Parker which is the basis of the complainant’s suit in the present cause. The pertinent parts of said contract are copied herein: Under the contract of date June 24, 1970, the complainant, Bettye Parker, had the exclusive right to sell the property through September 24, 1970. Shortly after June 24, 1970, Mr. Rogers, the defendant, became interested in the home again and [710] talked to Mrs. Compton, at her new home near Nashville in Davidson County, Tennessee. Mrs. Compton referred Mr. Rogers to Mrs. Parker and told him that the home had been listed with her for sale. Mr. Rogers communicated with Mrs. Parker and made a written offer to purchase the home at $27,000.00 which was less than he had originally agreed to pay for the home. This offer was submitted by Mrs. Parker to Mr. and Mrs. Compton and refused by them. Sometime prior to September 24, 1970, Mr. Rogers and Mr. Compton reached a conditional agreement that Mr. Compton would sell the home to Mr. Rogers at the original amount contracted for less a few hundred dollars for some curtains and/or other personal property which Mr. and Mrs. Compton had removed from the home. On August 29, 1970, Mr. Compton and Mr. Rogers entered into the following contract: “I, M. L. Compton, do hereby agree to sell my home located at 9203 Ramblewood Drive, River Oaks, Harrison, Tennessee to Ronald G. Rogers on September 25th, 1970 for the amount stated on attached contract which is a part of this contract. Mr. Ronald G. Rogers gives to M. L. Compton a check in the amount of $500. which is hereby acknowledged and become earnest money for the sale of the property. The contract will be null and void if by chance the agent, Betty Parker, presented a contract to Mr. Compton for the full asking price of $30,000 between now and September 24, 1970 which would bind Mr. Compton to the sale. Before me on this 29th day of August 1970, personally appeared: M. L. Compton and Ronald G. Rogers whom I am personally acquainted and whose signatures appear below. /s/ M. L. Compton /s/ Ronald G. Rogers My Commission expires Oct. 18, 1971 /s/ Calvin Ledfer ” The other contract referred to was the printed contract for the sale of real estate describing the home, the terms of the conveyance, and this contract was dated September 25, 1970. The complainant, Mrs. Parker, did not procure any other purchasers for the home and on September 25, 1970, Mr. Compton completed the sale of his home to Mr. Rogers. His Honor the Chancellor first held that the complainant was entitled to recover a commission from the defendants, Compton and wife, under the authority of 12 Am. Jur.2d, Brokers, Section 228, page 969 and 971, and the case of Dobbs v. Conyers et al., 36 Ga.App. 511, 137 S.E. 298. He dismissed the suit against the defendant Rogers. Upon a motion to reconsider, His Honor the Chancellor changed his mind and dismissed the suit against Compton and wife under the ruling of Gudim Realty, Inc. v. Hughes et al. (1969), 284 Minn. 39, 169 N.W.2d 216. The Chancellor held that the executory contract dated August 29, 1970, constituted an exception to the general rule that executory contracts amount to a sale at the time of their execution. We agree with the Chancellor that the complainant, Bettye Parker, is not entitled to recover under the clause of the sales agency relating to sales within 60 days aft [711] er termination of the contract to persons introduced to the property by Mrs. Parker. Rogers was introduced to the property by Compton and wife before the Comptons listed the property with complainant. We also affirm the finding of the Chancellor that under the following clause of the contract complainant was not entitled to a commission: “ . .1 agree that if this property is sold by myself or anyone else during the above stated period of time, I will pay Bettye Parker Realty Company a cash commission . . . ” Mrs. Parker did not procure a buyer ready, willing, and able to purchase the property under the terms of the listing within the three-months period provided by the contract. The contract with Rogers did not become binding and enforceable between the parties until after the expiration of the three-months period provided in the Uniform Sales Agency Contract. We agree with the Chancellor that the reasoning of the Gudim case, supra, is applicable to the case at bar. Finally, upon the rationale of Robinson v. Kemmons Wilson Realty, 41 Tenn.App. 297, 293 S.W.2d 574, we hold that the equities of the case at bar are with the defendants and that the complainant is not entitled to a commission in this case simply because she failed to find a buyer for the Compton home. The assignments of error are respectfully overruled and the decree of the Chancellor is affirmed at the cost of the appellant. MATHERNE, J., concurs.