Sherwood v. Kerfoot

Wilson, P. J. We have read with care the entire evidence as preserved in the record, and are impressed with the conviction that the decree is inequitable, and is not warranted by the proofs. As the case must be sent back for a new trial, we shall not go into an analysis of the evidence, but will state briefly the grounds on which we base our conclusions. There is no dispute as to some of the main facts in the case. It is not claimed that Kerfoot & Co. had the exclusive right to sell the property in question. They had the right to look for a purchaser, and in case they found one, a right to commissions. It is not claimed that they found a purchaser, for they did not hear of Adams until after the purchase was consummated. On the other hand, it is not disputed that Slier-wood, or Maloney, who was acting for him, found and introduced Adams to Mattocks & Mason, and that Sherwood, Malony and Adams, were present in the office of Mattocks & Mason when the papers were made out, and the sale concluded. But it is claimed by Kerfoot & Co. that they introduced Sherwood to the property, and that they were thus instrumental in finding a purchaser. This claim is not sustained by the proofs. In December, 1879, more than six months prior to Kerfoot’s connection with the property, Sherwood applied to the managing clerk of Mattocks & Mason, who had it in charge, and with whom he made an arrangement to act as broker, in finding a purchaser, and from thenceforward he was on the lookout for a purchaser. The testimony on that subject is uncontradicted. It is true, that in September afterwards he had some negotiations with Kerfoot & Co. in relation to a sale of the property; but this was under a misapprehension as to their relation to it, he having been led to suppose the property had been taken out of the hands of Mattocks & Mason, and placed in the hands of Kerfoot & Co. Upon learning his mistake, and that Mattocks & Mason were still the agents, he resumed his efforts to find a purchaser, under his original authority from them, and finally found such purchaser in Adams. We think it apparent, therefore, that the claim of Kerfoot & Co., that they introduced Sherwood to this property, or that he found a purchaser through information received from them, is groundless. It follows, that having neither themselves found a purchaser, nor been instrumental in finding one through another, they have no just claim to the commissions. As to the right of Sherwood to the commissions, while the evidence is not very full, we are of opinion that it is sufficient to entitle him to them. That he made the sale is not denied, and that he made it irrespective of his connection with, or information derived from Kerfoot & Co., we think is clear. Aside from his own testimony in reference to commissions, Mr. Mason, to whom Walter Mattocks referred Sherwood for information as to terms, etc., testified in substance, in reply to questions put to him by the court, that the contract was to share commissions with Kerfoot & Co. if they made the sale, and with Sherwood if he made the sale. This testimony came from a disinterested party, and was not attempted to be contradicted. As Mr. Mason was the only person to determine the matter of commissions, and as he concluded a sale with a purchaser presented to him by Sherwood, we fail to perceive any valid reason why Sherwood is not entitled to the commissions. The decree of the court below is reversed and the cause remanded. Reversed and remanded.