Attix, Noyes & Co. v. Pelan

Stockton, J. The instrument of writing sued on, is an undertaking by defendants, that plaintiffs, for two months, and thereafter until revoked in writing, should have exclusive authority to sell for defendants, the real estate therein described, for a sum not less than the price therein fixed. The plaintiffs were to be allowed a commission of two and one half per centum, for the negotiation. They were to have, however, all that the property sold for, over and above the stipulated price, and if STich excess did not amount to the two and a half per centum, on the stated prices, the defendants agreed to make itp their compensation to that amount. The plaintiffs, in support of their right to recover, aver that they are commission agents for the sale of real estate, and that as such, defendants contracted with them; that they performed their part of said contract, and spent a large amount of money, time and labor, and spared no pains, in endeavoring to effect a sale of the property, at satisfactory prices; and that they would have effected such sale, but the defendants, before the expiration of said two months, and without notice to plaintiffs, sold the prop — 341 — erty, and. thereby rendered themselves unable to comply with any contract of sale, that plaintiffs might have negotiated within the time limited. J3y disposing of the property beforb the expiration of the two months, and by thus preventing plaintiffs from making sale thereof, they claim that defendants have rendered themselves liable for the amount of the commission specified in the agreement. And plaintiffs further claim, that but for such interference by defendants, and but for their wilfully disabling themselves from carrying out their part, they, the plaintiffs, would have been able to sell the property for a price that would have yielded them a compensation, of three thousand dollars, and that they have been damaged to that amount, which they claim to recover of defendants. 1. The first question raised by the demurrer, is that there is no mutuality in the agreement set out in the petition — it not being signed by plaintiffs. In reference to this, it is sufficient to say, that plaintiffs accepted and adopted the written agreement as binding upon them, and acted upon it, and when such is the case, it is the same as if they had put their names to it. Patchin v. Swift, 22 Vt. 292. 2. So, in respect to the consideration — the alleged want of which, is the second question raised by the demurrer. It need not appear upon the face of the contract; it may be proved by parol, or it may be inferred from the terms and obvious import of the agreement. Patchin v. Swift, supra. The consideration was the undertaking of the plaintiffs to try and find a purchaser of the property. And their efforts in this respect; their time, labor and money, expended in endeavoring to effect a sale, constitute a sufficiently adequate consideration to support the promise on the part of the defendants. 3. The third question raised is, that there is no sufficient averrment of performance on their part by plaintiffs; that they did not negotiate a sale of the property; and that such negotiation, was a condition precedent to their right to recover. The plaintiff’s undertaking was, not — 342 — that they would effect a sale absolutely, but that they would use their exertions to sell. It is averred that they performed their part of the agreement, by endeavoring to effect the sale, but were hindered in accomplishing the object, by the interference of defendants. The question is whether defendants have not waived the performance of the condition, by rendering it impossible. If a party to a contract, entitled to the benefit of a condition, upon the performance of which, his responsibility is to arise, dispenses with it, or by any act of his own, prevents the performance, the other party is excused from showing a compliance with its conditions. Williams v. Bank U. S., 2 Peters, 96. The district court held that the petition was defective, in not averring that the sale of the property was brought about by the instrumentality of the plaintiffs; that they were entitled to recover their full compensation, if the sale was negotiated, or induced by them, or a reasonable compensation for their money, time and labor expended in endeavoring to effect a sale, if such a result was prevented by the interference of defendants, or by their selling the property themselves before the expiration of the time limited ; and that as the petition does not aver, that the sale was brought about by plaintiffs, and does not set forth their demand in the light of an obligation on defendants to pay for reasonable expenses, (no sale having been effected by plaintiffs), it was insufficient. This view of the rights of the plaintiffs, and of the liability of the defendants, is entirely too narrow. The parties did not contemplate that they were to be confined within any such limits. The right of the plaintiffs to their commission, and the obligation of defendants to pay the same, were to become absolute: 1. when a sale was negotiated by plaintiffs; 2. If a sale negotiated by them, was not completed by reason of defendant’s title to the property proving defective; 3. If defendants, after the expiration of the two months, and after withdrawal, availed themselves of any negotiation had by plaintiffs before withdrawn!; 4. If defendants failed to con — 343 — firm a sale made by plaintiffs. Although the plaintiffs may have used every exertion, and expended theiipmoney, time and labor in endeavoring to negotiate a sale, yet if they did not effect it, they were not to receive any remunera* tion, even for necessary expenses. But if, in good faith, they entered upon the business of their principals, andmade exertions to sell their property according to this agreement, (and if they show that they would have effected a negotiation, but for defendants’ interference, and selling the property themselves), they are entitled to their compensation, although they did not effect a sale, if the property was sold by defendants within the two months. The court further held, that it was competent for defendantg, at any time before a sale was effected by plaintiffs, to withdraw their written authority to them to sell; that this might be done by selling the property themselves; and that until performance by plaintiffs, the writing sued on was to be regarded merely in the light of a proposition to sell, entitling plaintiffs to their compensation only in the event of a sale made by them, or by their instrumentality, This view of the case by the district court, in our opinion, was erroneous. If the plaintiffs, in good faith, undertook the performance of their part of the contract, and, as averred in their petition, used all reasonable endeavors to effect a sale of the property, the defendants, during the two months to which the plaintiffs’ authority was limited, could not revoke it, or sell the property themselves, without compensating plaintiffs for services rendered; and if it is shown that, by their act, any sale that plaintiffs might or could have made, was hindered or prevented, they are liable for all the compensation that such sale, if made, would have entitled them to. This view of the case, disposes of the question made, whether the plaintiffs are entitled to recover only the commission of two and one-half per centum, on the stipulated price, or such greater amount as they may be able to show that they could have sold the property for, but for — 344 — the interference of defendants. As, by the agreement, they had the exclusive right to sell for two months, they are entitled to recover all that such exclusive right would have brought to them, if the sale was prevented by defendants’ interference with their rights. As it is averred, in plaintiffs’ petition, that defendants wilfully interfered and disabled themselves from carrying out their part of the contract, and that plaintiffs were thus prevented from malting a sale, which they otherwise would have been able to make, they need not aver any other performance on their part, as such performance was excused, and waived by the act of defendants; and defendants have, by such interference, rendered themselves liable for all the damages plaintiffs have thereby sustained. The defendants’ promise to pay a commission of two and one-half per centum, is not more certain and binding, than their obligation to pay all that the property brought over and above the stipulated juice, if jflaintiffs should sell it for more than that price. Both rest on the same consideration, and the different liability was to arise, only under a different state of facts. In a recent English case, the plaintiff was employed as clerk, under a contract of hiring for two years, at £150, .for the first year, £160, for the second year, and 50 jier cent., on the gross juofits. The defendant, alleging disobedience of orders and misapprojulation of moneys, discharged him. The jury found these issues against the defendant, and gave the plaintiff a verdict for twelve months’ salary and twelve months’ share of jirofits. One year’s salary, within a trifling sum, had been jiaid. A motion to set aside the verdict, on the ground that the damages were excessive, was denied. Wilde, O. J., said: “ With respect to the amount of damages, it was for the jury to say what amount of compensation the plaintiff was entitled to, for the defendant’s breach of contract.” Smith v. Thompson, 8 Man. Gr. & S., 42. Objecting to the language of the court, Sedgwick says: “ Why, in a case of .this kind of simple contract, is it for the jury to fix, — 345 — -without control, the defendant’s liability ? If, in a case of this description, there is no rule of damages, it would seem to be difficult to declare one in any.” The rule, he says, is this: that the plaintiff has a right to recover the stipulated wages for the fall .time, subject to the defendant’s right to recover whatever the plaintiff might, during the period, have reasonably earned. Sedgwick on the Measure of Damages, 351. So, where it was agreed between the plaintiff and the defendant, that in case of a vacancy occurring in the command of a certain East India vessel, the plaintiff should be appointed for two voyages, it was held, that the jury might give damages for what the plaintiff could have earned in both the voyages, and that they were not limited to one. Richardson v. Mellish, 2 Bingham, 229. “Here, also, (says Mr. Sedgwick), the jury were bound to give their verdict for both the voyages, subject, of course, to the right to recoupment.”. The plaintiffs in this case are, therefore, entitled-to recover on then- petition, what they could have earned hy any sale they show they could have made. If they could not have made a sale, they may, under an amended petition, recover such reasonable compensation for their services, as they may be shown to have been worth to defendants. judgment reversed.