Hogan v. Gilbert

Jenkins, P. J. The plaintiff, a real-estate broker, sued the owner of certain land for commissions on account of having produced a purchaser ready, able, and willing to buy the property listed, on the terms offered by the owner. The petition alleged that the contract for commissions was with the plaintiff. The defendant fuoved for a nonsuit, on the ground of a variance between plaintiff’s testimony and his petition, because the plaintiff testified that, after the original employment of himself, he stated to the defendant that he would need his brother to assist in making a sale, and wanted the brother to share in the commission, and that the defendant was to pay them five per cent. After the court had overruled the motion the defendant testified that he had the trade with the plaintiff, and the plaintiff “ was to pay Mm five per cent, commission on the sale,” that he made the contract with plaintiff to sell this land, that all the plaintiff did was afterwards to come to him and ask him “ something about his brother helping him” (plaintiff), that the defendant replied that “ as far as he [defendant] wms concerned,” he “ didn’t care who ” the plaintiff “ got to help him sell the land,” and that this was all that was said. The evidence was undisputed that the defendant refused to execute the contract of sale. The sole issue was whether or not he was justified in such refusal on account of any non-compliance by the purchaser with the terms of the contract. The preliminary written agreement for' a purchase and sale as signed by the owner and the purchaser procured by the broker fails to state specifically when tlie actual contract of sale should be entered upon, the bond and purchase-money notes should be delivered, and the full first pajonent should be made. The written [447] contract executed August 18, 1919, simply provided that the purchaser should pay $15,000 cash, give a note of $2,500 principal, due January 1, 1921, and 14 notes of $5,000 each, payable from January 1, 1922, to January 1, 1935, with eight per cent, interest to be paid yearly, acknowledged the receipt of $2,000 earnest money, and provided that possession should change January 1, 1920. The defendant in his plea set up that, the purchaser having failed to make the $15,000 cash payment and deliver the notes stated, he on October 20, 1919, notified the purchaser by letter that such terms must be performed by October 29, 1919, giving him seven days to meet such conditions, which was a reasonable time, 60 days having previously passed since the contract, and that the purchaser wholly failed to perform within that period. The defendant introduced this letter, and testified: “I agreed to accept the $2,000, and give Jobson 30 days in which to examine the title to the land, and the matter went on, and he never did say whether he approved of the title or not; I never did agree for him to pay $2,000 and give him until January 1st on the $13,000. I just merely extended him the 30 days in which to examine the titles to the place, and he was to let me know if he approved the title to the land, and he never did let me know. In this contract it is stipulated that $15,000 was to be paid cash. He did not pay me that much cash in accordance with the contract.” As already stated, the preliminary written agreement between the defendant and the purchaser procured by the broker did not provide as to the time when the terms of purchase should be performed by the purchaser. However, the defendant, immediately following his evidence just quoted, and in his own direct examination, admitted: “ This contract that was signed does not speak the truth. $15,000 was not to be paid cash, only $2,000 was to be paid cash, and $13,000 was to be paid on January 1st thereafter.” There was no contradiction of the testimony of the purchaser that he had tendered to the defendant the full cash amount due and the agreed bond and notes before January 1, 1920. And the defendant further admitted that the purchaser “ tendered me some money and notes and bond for title, I don’t know how much money he had; this was on December 8th.” It is not'necessary to add anything further to the headnotes. Judgment affirmed. Stephens and Hill, JJ., concur.