Watts v. Howard & Calkins

Mr. Justice Waterman delivered the opinion of the Court. It clearly appears that the effort made by appellees to effect a sale of the property of appellant entirely failed. Appellees did call the attention of Mr. Johnson to the property, but he declined to purchase, and there is nothing tending to show that appellees had not ceased all effort to sell to him, long before his attention was again called to the property by reading an advertisement inserted by appellant. It in no wise appears that appellant, in, after the lapse of some months, lowering his price and himself advertising his property, acted in any bad faith toward appellees, or sought thereby to take advantage of anything they had done. The purchaser’s attention was again attracted to the property, not by appellees, but by an action of appellant with which appellees had nothing to do. There is nothing to show that Mr. Johnson would ever have again considered the purchase of this property but for the advertisement published by appellant, two months after Johnson had declined to buy. Surely there must be a period within which, after a party introduced by an agent has declined to purchase, the owner or another broker may treat the negotiation as at an end, and entirely new and independent solicitation begin. Mears v. Stone et al., 44 Ill. App. 44; Carlson v. Nathan, 43 Ill. App. 364; Tombs v. Alexander, 101 Mass. 255; Earl v. Cummins, 54 Penn. St. 394. Appellees did not, by their efforts, accomplish anything; they seem not to have for several months done anything to bring about a sale; they sold out their business to a new firm and went out of the real estate business three months before appellant inserted his advertisement, and do not appear to have been in any way the procuring cause of, or instrumental in. bringing about the sale finally made. They did introduce Mr. Johnson to appellant, but from that introduction nothing came. A broker earns his commission if his act, however slight, brings about a sale, but if his act fail to accomplish anything, he is not entitled to compensation. Earl v. Cummins, 54 Pa. St. 394; Wylie v. Marine Nat. Bank, 61 N. Y. 416; McCleave v. Paine, 49 N. Y. 561; Lipe v. Ludwick, 14 Ill. App. 572; Armstrong v. Wann, 29 Minn. 126; Sibbold v. Bethlehem Iron Co., 83 N. Y. 378. Counsel for appellees say: “ It is very seldom that property is sold for the price and upon the terms given to the broker. The owner rarely expects to sell for the price and upon the terms first given to the broker, and the broker knows this, and his efforts are directed toward getting an offer which will be satisfactory to the owner.” We do not understand such to be the duty of a broker employed to sell for a fixed price. His obligation to his principal requires that, if he do anything, his efforts shall be directed toward making a sale upon the terms given. In endeavoring to persuade his principal to take less than the price at which he has authorized a sale, he is not so much serving his employer as a would-be purchaser. The judgment of the Circuit Court is reversed and the cause remanded.