Kelly v. Marshall

Opinion by Mr. Justice Fell, The plaintiff was authorized by the defendant, to sell for $70,000 an oil producing property on which there were a number of wells completed and one partly drilled. Upon his representation that the price was too high it was afterward reduced to $60,000, then to $55,000, and finally to $52,500. The last reduction was made about one month after the plaintiff’s employment, with the understanding that unless the property was sold that day it would be withdrawn and his agency ended. He did not succeed in obtaining a higher offer than $47,500. This was declined by the defendants, and he was then notified that the property was withdrawn, and the parties to the negotiation separated and went to their homes, and the defendants resumed the drilling of the unfinished well, operations on which had been suspended during the negotiations. Eleven days after this the defendants sold the property for $50,000, the purchaser being the same person with whom the plaintiff had opened negotiations and from whom he had obtained the offer of $47,500. Upon the trial of an action brought by the plaintiff to recover commissions on the ground that he had brought the parties together and that his agency was the efficient cause of the sale, the jury was instructed that as there had been no time fixed by the original agreement within which a sale should be effected the plaintiff had a reasonable time within which to secure a purchaser, and that the defendants could not within that time revoke his agency and relieve themselves of liability to pay the commission agreed upon. This instruction was repeated in the answers to the defendants’ points, and is the subject of five of the assignments of error. [399] The plaintiff was not a real estate broker, he did not have charge of the property, his agency was not coupled with an interest or founded upon a consideration. He had solicited the privilege of offering the property for sale; at his suggestion the price had been three times reduced, and finally after a month of fruitless effort upon his part a time limit within which a sale should be effected was fixed. The reason for withdrawing the property was stated to him. In the judgment of the owners its salable value was being injured by its repeated offers in a limited market, and was certain to be affected by the result of other enterprises in the locality, and the defendants were delayed in the development of their own property by the suspension of operations on their unfinished well pending the negotiations for sale. The interest was aleasehold, liable to sudden changes in value, and the character of the property was such that time was of the highest importance in dealing with it, and presumably the essence of all contracts in relation to its sale. The remarks of Mitchell, J., in the opinion of the Court in Vincent v. Oil Co., 165 Pa. 402, have direct, application to this case: “ The nature of the property as oil producing made it liable to fluctuate in value, which raises the presumption that time was of the essence of transactions concerning it, and the facts in regard to the wells in the immediate vicinity then going down show that a new development at any time might materially affect its value, and that this was understood by the parties.” Under the facts and circumstances as shown by the testimony we think it was the right of the defendants to revoke the plaintiff’s agency in the manner and at the time at which they did so. Whether the revocation of the agency was made in good faith or was a mere subterfuge to relieve the defendants from the payment of commissions was an open question at the trial, and was for the jury. It may appear that the plaintiff, if not entitled to commissions as such, could still recover compensation for services rendered before the revocation of his agency: Jaekel v. Caldwell, 156 Pa. 266 ; Vincent v. Oil Co., supra. But the case was not tried upon that line. The second, third, fourth and fifth assignments of error are sustained and the judgment is reversed with a venire de novo.