Alex F. Dreyfus Co. v. Breen

WESTERFIELD, J. The plaintiff firm is engaged in' business' as a real estate agent. It brings this suit against the defendant for [480] a commission in the sum of $1,200 and attorneys’ fees, alleging that on March 28, 1926, defendant entered into a written contract, employing plaintiff as an exclusive agent for a period of 30 days to sell or exchange the property of defendant No. 1037 Broadway street, for the sum of $32,-000 cash, or for any other price agreed upon, and to pay a commission of 4 per cent on the price of the sale made during the life of the contract, or the gross amount of any agreement made within 45 days after the expiration of the term of the contract with any one to whom the property had been quoted during the 30-day term of the contract; that Mrs. Breen, the defendant, on April 30, 1926, within 45 days after the expiration of the contract, accepted an offer of one Hochfelder with whom plaintiff’s salesman had been in negotiation during the term of the contract, to exchange the property for certain real estate owned by Hochfelder on terms mutually agreeable, and involving a valuation of defendant’s property on a basis of $30,000. Answering plaintiff’s petition, Mrs. Breen admitted the execution of the contract set up in plaintiff’s petition, and also admitted the execution of an agreement to exchange her property for the property of Mr. Hochfelder as alleged. Further answering, she averred that her signature to her contract with plaintiff had been obtained by fraud and misrepresentation, and, in the alternative, averred that the contract between plaintiff and herself expired • within 30 days, or on April 27, 1926, several days prior to the agreement she entered into with Hochfelder. She denied all liability in the premises. There was judgment below in favor of plaintiff, and defendant has appealed. The contract sued on is a printed form, With certain parts interlined with ink in handwriting. It reads as follows: “Standard Exclusive Agency Contract “New Orleans Real Estate Agents Association “March 28th 1926 “Alex F. Dreyfus Company,' Inc. (Agent) “Dear Sir:— “In consideration of your efforts to find a buyer for the property 1087 Broadway Cor. Zimple, ground measuring 1/2x120 in square of Freret & Audubon, I employ you or your successors, exclusively, to sell same for $82,000. Thirty-two thousand and- 00/ 100 cash, or on the following terms as cash, or for any other price, or terms hereafter agreed upon, and I agree to pay you or your successors, a commission- at the regular rate of 4%, as fixed by the New Orleans Real Estate Agents’ Association, on the gross amount of any agreement to sell or exchange bearing on said property (minimum commission to be $-) made dm> ing the existence of this contract, or on the gross amount of any such agreement made within forty-five days after the expiration or termination of this contract with anyone to whom said property has been quoted, during the term of this contract. “I give you exclusive authority, to accept a non-interest bearing deposit of ten per cent of the sale price, when satisfactory offer to purchase said property is made, and to place said deposit in any bank you may select, without responsibility on your part in case of failure or suspension of said bank pending settlement with me, out of which deposit you may deduct your commission as above. , In case of employment of counsel to enforce this contract, I will pay twenty-five per cent additional as attorney’s fees, also all costs. “As you are to act upon the fact of this employment and contract, it is to remain in full force and effect for a period of SO days. “I agree to refer all applicants to you, and not to interfere in the sale of said property, during the term of this contract. “Owners’ signature Anna Breen “Address 1%06 St. Charles Ave. “Listed By R. C. P. “Expiration Date April 27, 1926. “I accept the above employment. [481] “Agent’s Signature Alex .Dreyfus Go. Inc. ‘‘Reg. No. By Alex Dreyfus, Pres.” (Handwritten provisions italicized.) Pretermitting any discussion of the question of fraud, we will first notice defendant’s contention to the effect that this contract evidenced only an intention to confer a mandate upon plaintiff for a period of 30 days, authorizing it to sell her property for $32,000 cash. It is argued that, in contracts partially printed and partially written by hand, the handwritten portions, when in conflict with the printed provisions, must prevail. Hagan vs. Scottish Union & National Insurance Company, 186 U. S. 423, 22 S. Ct. 862, 864, 46 L. Ed. 1229. Therefore, it is said that the words “all cash” following the printed word “cash” and the words and figures in ink ■‘thirty days (.30),” emphasize the intention of the parties to create a contract of agency whereby plaintiff was exclusively authorized for 30 days only to sell defendant’s property for cash and not otherwise. These provisions in ink are said to be in conflict with the printed words “sell or exchange” and with the 45-day clause which also appears in print. The term of the contract may be said to consist of two periods, one of -30 days and one of 45 days. It is not pretended that a cash buyer was obtained or that an exchange was effected during the 30-day period; hence we are not concerned with the alleged inconsistency of any provision of the contract relating to this feature of it. As to the 45-day period defendant’s liability is made to rest upon her contracting with a prospect with whom plaintiff had been negotiating during the 30-day period. The only conflict that is claimed is an inconsistency with the ink-written term of 30 days, which, it is claimed, terminates all contractual relation between the parties. But as to this we believe the reasonable interpretation to be that the 30-day period was allowed plaintiff to consummate, his efforts to dispose of the property, and the 45-day period was intended only to prevent, the defendant from availing herself of an opportunity which plaintiff had discovered but not developed without compensating the plaintiff for his efforts. We find no inconsistency in these provisions. Viewing the contract as a whole, and giving due effect to all of its provisions, it is plain that defendant’s liability must depend upon the effect which must be given her action in agreeing with Hochfelder to exchange the property within the 45-day period. If we had been called upon to decide this issue a year or so ago, our conclusion might have been different, for in a similar case involving a similar contract we held that an agent was entitled to his commission, but, when our opinion was reviewed by the Supreme Court, it was pronounced erroneous. The case to which we refer is that of Clesi vs. Cooney, 164 La. 658, 114 So. 584, 585. In that case the plaintiff, Clesi, a real estate agent, sued for a commission alleging that the defendant, Cooney, had given him an exclusive contract for 30 days to- sell certain property owned by Cooney for $60,000 or any other amount agreed upon — terms, all cash; that in said contract it was stipulated that, if plaintiff found a buyer, or proved instrumental in finding one, or if the property was sold by Cooney or any other person during the term of the contract, a commission of 3 per cent on the purchase price was to be paid plaintiff, “the amount being earned and payable when agreement to purchase is signed.” It was further alleged that during the term of the contract Cooney had been informed that plaintiff could sell the property for $55,500, but that Cooney declined to accept that amount; [482] that, within 9 days after the signing of the exclusive contract of agency, the defendant, Cooney, entered into a contract agreeing to sell the property to a party by the name of Ferrara for the sum of $54,000. Cooney answered, admitting the contract, and also admitting that during its term he had agreed to sell the property to Ferrara for $54,000, of which $20,000 was to be paid in cash, and the balance on terms, and justified his refusal to pay the commission on the ground that his agreement with Fei’rara did not interfere with the execution of plaintiff’s contract to sell the property for $60,000 cash, which the plaintiff had failed to do. The plaintiff filed a rule for judgment on the face of the pleadings which, after hearing, was made absolute, and judgment rendered in plaintiff’s favor as prayed for, which, on appeal to this court, was affirmed. Clesi vs. Cooney, 7 La. App. 182. In reversing the district court and this court, the Supreme Court held that the mere fact that Cooney had agreed to sell the property during the life of his contract with Clesi did not render him liable for a commission, because his liability depended upon whether such action interfered with the performance of the contract, whereby Clesi for 30 days was exclusively authorized to sell the property for $60,000 cash. With the light of the Clesi case before us, it must be held that the liability of the defendant in this case can only arise if it should appear that the action of the defendant was prejudicial to whatever efforts plaintiff may have made to execute his contract. In that aspect it must be conceded that, although Mrs. Breen contracted with Hochfelder, to whom an agent of plaintiff had spoken concerning Mrs. Breen’s property, she did not contract to sell or exchange for cash nor for $32,000, but for $30,000, .a fact which plaintiff recognized, for commission is claimed upon $30,000 and not upon $32,000. It is true, as contended by counsel, that in the Cooney ease, unlike the' present case, the contract considered did not have a 45-day clause, nor was there any provision obligating the owner to refer all applicants to the agent, but this distinction is unimportant, because in the Cooney case the commission was due when a contract for purchase was entered into, but was disallowed because the provisions of the contract entered into by the owner were different from those under which the agent was authorized to sell, and in this case defendant agreed to pay a commission “upon the gross amount of any agreement to sell or exchange made within 45 days * * * with any one to whom said property had been quoted,” but the commission must be disallowed because the contract negotiated by the defendant here was different from that which the agent had undertaken to consummate. A reading of the opinion in the Cooney case plainly indicates that an agreement to sell the property without the interposition of the agent during the term of the exclusive contract of agency was not sufficient to render the owner liable for the commission, if the contract independently negotiated did not interfere with the agent in the performance of his agreement, and was upon terms and conditions different from those under which he had undertaken to dispose of the property. Our understanding of defendant’s obligation under the 45-day clause, in view of the Cooney case, is that she agreed to pay a commission if she made an agreement with a prospect of plaintiff during this period upon the terms which she authorized plaintiff to dispose of her property, and not otherwise. [483] We can find no distinction in principle between the case at bar and • the Cooney case; consequently, whatever opinion we may have held in the past must be subordinated to the view expressed by the Supreme Court. For the reasons assigned, the judgment appealed from is annulled, avoided, and reversed, and it is now ordered that there be judgment in defendant’s favor, dismissing plaintiff’s demand.