Keener v. Harrod

Tuck, J, delivered the opinion of the court. This action was instituted by the appellees, to recover compensation for services rendered in procuring a purchaser of a certain lot in the city of Baltimore, which the appellant was authorised to sell on commission, as agent for the owners in Philadelphia. It appears, that after the property had been a long time in market, the appellees offered to furnish a purchaser to the appellant, if he would pay them a bonus of $500; and that after several interviews on the subject, the appellant agreed with the agent of the appellees, “that he would pay — 70 — them $350, when the names of the persons intending to purchase should be disclosed to him,” which was done, and the property afterward sold to them. Several prayers were submitted (by the defendant below, all of which were rejected, except the first, which was granted with a modification. The view which we have taken of the case, disposes of the second and third prayers in the bill of exceptions, which are predicated on the supposition, that the appellant entered into this agreement as agent for the owners, and that they, alone, are responsible to the plaintiffs. To bind the principal, the act must be done in the exercise, and within the limits of, the power delegated; and whenever a party undertakes to do an act, as the agent of another, if he does not possess any authority therefor from the principal, or exceeds his powers, he will be personally responsible to the person with whom he is dealing. Story on Agency, secs. 261, 264. Keener was employed to sell this property, but it nowhere appears that he had any authority to employ, in the name of the owners, any person to assist him in making the sale, or to procure a purchaser. If a man charged to render a particular service, engages another to aid him, it by no means follows, that he can do so, at the expense of his employers, without their consent. His own letter, set out in the record, shews, that he had no authority so to charge the owners, and that he expected to compensate the plaintiffs, by dividing his own commission with them. If he entered into the agreement in confidence that his principals would sanction it, he might have made his liability depend on their acquiescence. This, however, was not done, and he must meet the consequences. Regarding this as a personal liability of the appellant, we proceed to enquire, whether the facts presented by the record entitled the plaintiffs to recover. We do not agree with the counsel for the appellees, that they would have earned their reward, by merely disclosing the names of the persons who ultimately purchased the property, as a secret of their business as property agents, if a — 71 — sale had not been effected. We understand the rule to he this, (in the absence of proof of usage,) that the mere fact of the agent having introduced the purchaser to the seller, or disclosed names by which they came together, to treat, will not entitle him to compensation; but, if it appears that such introduction or disclosure was the foundation on which the negotiation was began and conducted, and the sale made, the parties cannot afterwards, by agreement between themselves, withdraw the matter from the agent’s hands, so as to deprive him of his commission. Russell on Factors and Brokers, 48 Law .Lib., 160. Wilkinson vs. Martin, 34 Eng. Com. Law, 267. The legal import of an agreement to procure a purchaser, hinds the party to name a person who ultimately buys the property. Murray vs. Currie, 32 Eng. Com Law, 641. It appears, that immediately after the names of Barnes and Abbott were disclosed, a negotiation was opened between them and Keener, and a contract concluded for the sale of the property, reserving for the approval of the owners the sufficiency of the securities they were to offer. These being rejected, others were proposed, and finally an arrangement and sale were concluded between the owners and purchasers, on the terms substantially of the contract, that they had entered into with Keener. It is insisted on the part of the appellant, that the agreement was to furnish him with a purchaser, and that as the sale was finally made by the owners themselves, he is discharged, and justly so, because not having made the sale himself, he cannot demand compensation from his principals. This question of liability, as between Keener and the owners, may be brought within the principle of the cases to which we have referred, if he has done nothing to prevent it. He was the person who brought the owners and the purchasers together, upon information derived from the plaintiffs. It can make no difference to the owners how he found the purchaser, or that the final arrangement was completed by them. They would be equally liable to him for commission, unless he has forfeited his claim thereto by some act, authorising his principals to withdraw the negotiation from his hands, and — 72 — take charge of it themselves. We see nothing, however, in the record to warrant such an inference. He made the contract substantially on which the sale was made. The only cause of delay, in the first instance, being the rejection by the owners of the proffered securities, a matter with which Keener had no concern, having referred it to his principals. Thé eourt were right in refusing the fourth prayer. It denied the plaintiff’s right to recover “even if they found the purchasers, unless the plaintiffs made the sale to them.” The undertaking of the plaintiffs was, not to negotiate as to the terms of sale, and conclude the business, but merely to name a person who should buy the property. The appellant was not entitled to the fifth instruction asked by him. Barnes, one of the purchasers, proved, that he expressly refused to rescind the first contract, although Keener had again and again invited other proposals from him; and that they finally entered into a new one, which the purchasers thought more advantageous to themselves, but which the owners afterwards disavowed,■ as-having been'made by Keener, without authority. The appellant could not claim that the contract was terminated, while the owners and the vendees were negotiating, as to the securities; that being the only point on which they differed, and one which Keener himself had reserved for the decision of his principals; and more especially as the vendees were offering all the while, to increase the securities to the satisfaction of the other parties. The facts stated, as the groundwork- of the prayer, amounted to nothing more than an offer on the part of Keener, to break off the treaty if the securities first offered, should be declined by the owners. According to the prayer, the plaintiffs’ right to recover was made to depend on the contract of sale being completed upon the first proposal, although the vendees were willing, and offered to continue the'negotiation : Thus allowing the defendant to defeat the plaintiffs’ claim, byrefusing to negotiate with the very persons whom they had named as purchasers. We see no justice in this view of the case. Where a- party names a purchaser, his right to compensation depends on a — 73 — successful treaty, and the vendor must deal with the party named, in good faith, and afford him a reasonable opportunity to complete the purchase. If the first offer be rejected, and another proposed, it should, at least, be considered. The party naming the purchaser does not stipulate that his first proposal shall be such an one as the vendor will accept. The cou-rt granted the first prayer of the defendant; but annexed a modification, to which his counsel objects, on the ground that it is inconsistent with the prayer, and because the court had no power, of its own accord, to grant the. additional instruction. He cannot complain that his own prayer was granted. The question is whether he was injured by the instruction as given, that is to say, by the prayer and the modification, taken together. The court told the jury that if they found from the evidence, that the sale was- finally made between the owners and vendees in person, the plaintiff’s could not claim compensation, as for services rendered in furnishing the purchasers. But to this view of the case, they added another hypothesis, warranted by the evidence, and which, if believed by the jury, entitled the plaintiff’s to- recover, and instructed the jury accordingly. This addition to the prayer presented the law of the case, substantially, according to' the views entertained by this court. If there was any error in the entire instruction-, as given, it Consisted in conceding to the appellant more than the facts of the case justified. But of this, he cannot complain. The court, by granting his prayer, which was part of the instruction, subjected the plaintiffs to the risk of a verdict against them, on the ground that the vendors and vendees themselves had finally arranged the business, when the proof shewed that they were brought together, and the sale ultimately made, by means of the agreement between the parties to this suit, by which the plaintiff’s had become entitled to their compensation. And the last proviso of the modification places the plaintiff’s right to recover, among other faets, on the defendant’s not having disclosed the names of his principals, at the time of the agreement, whereas, for the reasons before stated, he was responsible to — 74 — the plaintiffs, whether he gave the names of the' owners or' riot. 1 In 6 Gill and John., 399, 404; 1 Gill, 144; 1 Gill, 280; prayers were granted with modifications. The Court of Appeals reversed the ruling of the court below, in the first and last cases referred to, not because the court had no right of its own motion, to add a qualification to the prayer; but for error in that'part of' the instruction. It is true that a party cannot control, or modify, the hypothesis of the prayer offered by liis adversary, (1 Gill, 144,)'but if does not follow that the court may not do so. However, as a general rule, it may' be proper to grant or refuse prayers in the terms in which they are presented; the court may reject them all, and instruct the' jury in their own words, or grant the prayers with such' explanations or - qualifications as may be necessary to a proper understanding of the law of the case.- 6 Gill arid Johns., 404. 3 Gill, 481. According to our view of the instruction, as given,' it is immaterial whether the prayer and the modification were inconsistent, as urged by the appellant’s counsel:, or not. For any such error in the ruling of the court the pláiritiffs might have complained; but the defendant cannot. In the cases referred to, on this point,—6 Gill and Johns., 404; 1 Gill, 144; 1 Gill 280;—it was'held, by this court, that the appellants were entitled to the instructions which they asked, and that the court below erred in annexing qualifications which destroyed' the effect of the prayers as made. But, in this case, the appellant was not entitled to the gratification of his own prayer. The modification, except as to the last proviso, was in accordance with the law of the case; and the entire instruction having placed the defence on more favorable grounds than the appellant could have required, he cannot claim a reversal of the judgment. 3 Gill and Johns., 472. 9 Gill and Johns., 461. Judgment affirmed.