Love v. Owens

Philips, P. J. The principal contention of appellants is, that notwithstanding the agent may procure a purchaser, ready and willing to enter into a contract to take the property on the terms proposed, or such as is agreeable to the seller, and the agent bring the seller and the purchaser together, who then enter into a written contract, executed by them, as in this case, yet if the purchaser afterward fail to come up and perform the contract, without any fault on the part of the seller, then the agent is not entitled to his commission, although the purchaser be perfectly solvent and able to perform. As this position was contrary to our understanding of the rule.in this jurisdiction, we have examined with much interest the authorities cited by counsel in support of his contention. The case of Budd v. Zoller, 52 Mo. 238, does not go so far. It was merely held, that where B proposed-to A to effect for him a loan of money, to be secured by a deed of trust on A’s land, for a certain commission ; and at the time A delivered to B his title papers for his examination, B was not entitled to his commission where the lender produced by him refused to make the loan on account of defect in A’s [509] title deeds. The majority of the court held, that under the circumstances it was the duty of tile broker first to have satisfied himself by an examination of the papers turned .over to him by A of the sufficiency of the title. But the court were all agreed, that if A had employed B to effect a loan for him, to be secured by deed of trust on A’s land, without moré, and after B had produced the party ready to make the loan, and the contract had fallen through on account of defects in A’s title, the agent would have been entitled to his commission, as he had done all his employment contemplated. In Carpenter v. Rynders, 52 Mo. 281, the court say: “The plaintiff (the agent) had undertaken to sell defendant’s lot for a commission ; he negotiated a sale, which was satisfactory to the defendant. The defendant must of necessity make the deed and convey the lot.” Although the failure there resulted from the default of the seller in making the deed, yet the language of the court indicates what is meant by a sale, in such connection. It is the contract negotiated by the agent; the deed to be made by the seller, of course, as that is a matter over which the agent has no control. The case of McGavock v. Woodlief, 20 How. (U. S.) 221, fails to sustain appellants. The negotiation fell through because the purchaser, produced by the agent, offered certain substitution of securities, which were not acceptable to the vendor. The seller did not, as here, accept the proposition of the buyer, and enter into a written contract, satisfactory to all concerned. And the opinion of Mr. Justice Nelson concludes with the distinct announcement, that, ‘ ‘ The broker must complete the sale ; that is, he must find a purchaser in a situation and ready and willing to complete the purchase on the terms agreed on, before he is entitled to Ms commissions. Then will he be entitled to them, though the vendor refuse to go on and perfect the sale.” The cases of Kimberly v. Henderson, 29 Md. 512, and Richards v. Jackson, 31 Md. 252, assert the broad [510] proposition, that it is not sufficient for the agent to procure a purchaser who should enter into an agreement to purchase, but he must actually purchase, by complying with terms agreed upon, unless his failure to do so is occasioned by the fault of the vendor. So far as we are able to discover, the Maryland cases stand alone, if their holding is to apply to the facts of this case. The prevalent rule is, that where the broker, pursuant to his employment, produces a purchaser who is willing and ready to take the property on the terms acceptable to the seller, and the seller enters into a written contract with him expressing- the terms of the sale, and the seller is solvent and able to perform, the broker then becomes entitled to his commission, although the vendee afterward refuses to perform, without any fault on the part of the vendor. Love v. Miller, 53 Ind. 294; Rice v. Mayo, 107 Mass. 550; Veazie v. Parker, 72 Me. 443; Goss v. Stevens, 32 Minn. 472; Coleman v. Meade, 13 Bush [Ky.] 358; Keyes v. Johnson, 68 Pa. St. 42; Duclose v. Kissick, 102 N. Y. 678; Knapp v. Wallace, 41 N. Y. 477; Gonzales v. Brood, 57 Cal. 224; McCrary v. Green, 38 Mich. 184, 185; Sheperd v. Hedden, 5 Dutch. [N. J. L.] 345; Kerfoot v. Steele, 113 Ill. 610. This was directly held in Collins v. Fowler, 8 Mo. App. 588. And the language of our courts has been that whenever the agent procures a purchaser ready, willing, and able, and he is accepted by the vendor, the agent is entitled to his reward. Nesbit v. Helser, 49 Mo. 383, 385; Woods v. Stephens, 46 Mo. 556, 557; Beauchamp v. Higgins, 20 Mo. App. 514; Hayden v. Grillo, 26 Mo. App. 293. In this case, the agents did procure the purchaser, who was willing to take the property on the terms acceptable to the vendors. The purchaser, when presented by the broker, was accepted by the vendors, and they entered into a written contract with him at the price agreed upon between the principal and broker. It is conceded that Stone was solvent, and that he could [511] have been made, by resort to the courts, to perform the contract. What more could the agent do ? The defendants, by accepting the purchaser and entering into a written contract with him, put it out of the power of the agents to bring action against Stone on the contract, as they might have done had the contract been made in their name. As the agents could not make the deed, there was nothing more they could do. It does seem to me that it would be an unreasonable construction of the contract between the plaintiffs and defendants to hold that it was the intendment that the agents to be entitled to their commission should go a step farther, and have the purchaser perform the written contract, to which plaintiffs are not parties, and over which they have no control. The defendants not only accepted the purchaser, but received one thousand dollars of the purchase money9 which they yet hold as forfeited under the contract ; and also held a contract for the residue of the purchase money, which they could have specifically enforced. To permit the seller to escape his liability to the agent, merely because he is willing to let the purchaser go rather than bring a suit on the valid contract, would be to encourage injustice and open up the way for the purchaser and vendor to get off, merely by the one failing to comply voluntarily with his written compact, and the other to enforce it, the one forfeiting merely his first payment, and the other pocketing it, leaving the agent without redress for the wrong done him. II. There was evidence offered at the trial by appellants for the purpose of establishing the existence of a custom among real estate agents in and about Kansas City not to expect or demand anycommission where the purchaser failed to come up to his contract. It is unnecessary in this case to recur to the rules of law requisite to the establishment of such custom in pais. A careful reading of the evidence offered in this case satisfies us that the trial court properly disregarded this [512] issue. It failed to establish, any such custom. The state of case in the minds of the witnesses was manifestly not such as the one at bar ; and the fact that one person would say that the owner of property, rather than insist upon the performance of a valid contract with a solvent vendee, would let the contract go, could hardly tend to •establish the existence of a custom that would destroy the agent’s claim for commission under circumstances like these disclosed in this record. The other judges concurring, the judgment of the circuit court is affirmed.