Terry v. Bishop

Sims, J., after making the foregoing statement, delivered the following opinion of the court. In the view we take of the case, we need pass upon only one of the questions raised by the assignments of error, and that is this: 1. Did the court err in setting aside the verdict of the jury in favor of the defendant? The question must be answered in the affirmative. The rule upon this subject is, of course, well understood. If there was evidence before the jury, of a character not physically impossible or inherently incredible, which, if credited by the jury, was sufficient to sustain the verdict, it was reversible error in the trial court to set it aside. In accordance with the evidence for the defendant, the contract, on which the action of the plaintiffs was based, did not obligate the defendant to pay the real estate agents’ commissions for obtaining for the landowner an executory contract of sale, but only for the obtaining of a completed or perfected contract of sale (i. e., a contract, closed by becoming embodied in the contemplated deed and deed of trust and other papers expected to be executed at the time fixed for the com [339] pletion of the executory contract). There was some conflict between the testimony for the respective parties on this subject, but there was ample testimony, of a character which the jury were free to believe, which, if believed by them, was sufficient to sustain the verdict on this point. As the jury, therefore, may have so found this fact, the court below could not have properly reached a conclusion of fact to the contrary, nor can this court. And the ease turns upon this fact. Where such is the contract between the landowner and the real estate agent, the liability of the landowner to the agent for commissions depends upon the question whether the agent, at the time fixed for the completion of a contract of sale which the agent relies on.as entitling him to commissions, has produced a purchaser ready, willing and able to comply with the landowner’s terms of sale as stipulated in the landowner’s contract, or as varied by mutual consent. Crockett v. Grayson, 98 Va. 354, 36 S. E. 477; Murray v. Rickard, 103 Va. 132, 48 S. E. 871. The case of Bankers' Loan Co. v. Spindle, 108 Va. 426, 62 S. E. 266, relied on for the plaintiffs, is not at all in conflict with this holding, but expressly recognizes the correctness of the doctrine just stated. It is very true that, as argued for plaintiffs, the actual completion of the contract of sale is not a condition precedent to the right of the agent to commissions. This is true where the contract between the owner and the agent provides for a completed contract of sale, equally as where an executory contract of sale merely is provided for. But, in both eases alike, the agent must produce, at the time fixed in the contract of sale for its completion, a purchaser ready, willing and able to comply with the owner’s terms of sale aforesaid. [340] The evidence for the defendant, Terry, is to the effect that the contract of sale reported to the defendant and relied on by the plaintiffs as in performance on their part of their contract with the defendant, was the agreement of Minor to complete the executory contract of sale to him “at any time” the defendant might succeed in removing the clouds from the title by suit for that purpose. That was the contract of sale which the plaintiffs represented that they had. obtained and on which representation the defendant relied and acted to his detriment in going to the expense of bringing the suit which he instituted, instead of a suit against Minor for specific performance of Minor’s written agreement with the real estate agents. There is conflict in the evidence regarding these matters, but the verdict settled this conflict and concluded the fact that this modified contract with Minor was the contract of sale on which the plaintiffs had to rely in this action. That contract, in effect, postponed the time for the completion of it until such time in the future as might be required, in the exercise of due diligence, to complete the litigation necessary to perfect the title of record. The uncontroverted evidence shows that before the expiration of that time (i. e., before the time fixed, as aforesaid, for the completion of the contract of sale), the purchaser announced his unwillingness to comply with any terms of purchase and repudiated the contract of sale in toto. Subsequently, the defendant succeeded, in the suit instituted by him, at and in accordance with the request of plaintiffs themselves, for the purpose of removing the clouds from the title to which there had been objection, in obtaining a decree of the circuit court, and subsequently a decree of the Supreme Court of Appeals, affirming the decree of the lower court, which removed [341] the alleged clouds upon the title. Then arrived the time fixed, as aforesaid, for the completion of the aforesaid contract of sale, and no purchaser was then produced or could be produced by the plaintiffs. Such being the case, it is obvious that the plaintiffs did not produce a' purchaser ready and willing to comply with the terms of sale at the requisite time to entitle them to recover anything udner their contract with the defendant. There was testimony before the jury tending to show that the purchaser, Minor, was not financially able to complete the contract of sale even at the time he repudiated it, and that he repudiated it for that reason, and not because of any alleged cloud upon the title; but it is unnecessary to consider those questions, as it is clear that however able, he was not willing to complete the contract of sale when the time arrived therefor. The judgment under review will, therefore, be reversed, and final judgment will be entered for the defendant, with costs. Reversed and final judgment.