Harvey v. Hirsch

CHARLES F. CLAIBORHB, JUDGE. Plaintiff ie a real eetate agent. He euee for a oom-mieelon upon the following oontract: H. 0., La., July BBth, 1916. "I hereby appoint S. A. Harvey, hie heire or suo-ceaeore, nly agent and authorize him to sell or exchange my property known ae 603 - 617 inclueive and 615 - 17 in rear Gen. Taylor ooraer Annunolatlon &o . . . Sell 615 - 17 Oen’l Taylor $2000 Net or " 603 - 7 - 9 - 11 - 13 Gen'l Taylor $2500 Hot, for the price and eum of Forty-five hundred Dollars ($4500.00) net. Owner agrees to pay all mortgages. Interest and taxes for 1916 to be prorated by the vendor. If property is sold for this amouitt or less, owner agrees to pay his agent three per cent commission. I give my agents sole control of same from date, and to put up signs: and further agree not to interfere in the sale j»f said property during the term of this oontract. I also bind myself to refer all applicants for the purchase of said property to my agent. 1 will notify my agent in writing and give him ninety days notice if I desire this contract discontinued. TOien this property is sold, I agree and bind myself to pay my agents all over $4500.00 for their commission, no matter by idiom the property has been sold, or if any of the preliminaries of sale are made during the term of this contract, and sale Itself is consummated thereafter, I agree and bind myself to pay my agents all over $4500.00 and if sold for less than this amount owner agrees to pay three per cent commission. In the event of no sale being effeoted during the exlstsnoa of this contract no ohargo will be made for commission. 3 S3 [334] It Is understood and agreed that ray agents' labor ceases when the deposit Is put up, and that the cómalas ion or difference Is earned, and will he paid by me whether the title of said property is accepted or rejected by the purchaser. My agent is authorized to accept a deposit of ten per cent of the purchase price, and in case of suit, or if the services of an attorney are required to recover any part of the commission or difference due, 25 per cent, will he added for attorney's fees. "Signed" Harry Hirsch. The plaintiff alleged "that he spent a great deal of time in endeavoring to interest prospective purchasers, and while the said contract was in full force and effect, petitioner never having received any notice that the said Harry Hirsch desired same discontinued, on December the 28th, 1916, the said Harry Hirsch sold the property to Karl Adler for $3500.00, and now refuses to pay your petitioner the 3% stipulated in the said contract as detailed above". He prayed for $105.00 commission and 25^ attorney's fees thereon. For answer the defendantadmitted signing the above contract, but denied that the plaintiff had spent a great- deal of time in endeavoring to sell said property, or spent any money, or did anything looking to the sale of the property; he admitted that he sold the property for $3500; he averred that the oontract sued on was null, void, apd of no effect, for want of mutuality and for want of consideration; that the plaintiff neither did nor gave, nor promised to do or give anything as a consideration for signing of the contract, and that it is a nudum pactum without any force or effect. The plaintiff as a witness testified that he advertised the property several times and submitted it to several prospective purchasers, and that he was advertising the property,at the time it was sold by Mr. Hirsch, in the Item and Timos-Pioayune. There was no other testimony. There was judgment for plaintiff as prayed for and defendant has appealed. The reasonjfor judgment given by the Dlstriot Judge were as follows: [335] "Under this contraot, Harvey advertised the property for sale and madeeffortw to sell it, and was Continuing the efforts, when, without having terminated the contraot, Hlrsch on December 28th, 1916 scdd the property for $3500,00. Harvey brings this suit on the contraot to recover three per cent on the purchase price plus 25 per cent attorney's fees thereon. The defense pleaded is "that the contraot sued on is null, void, and of no effect for want of mutuality, and also further that the contraot is null, void, and of no effect for want of consideration! that the plaintiff had neither given, nor promised to give, nor done anything, as a consideration for the signing of the said contraot, and that it a nudum pactum and without any valid force or effeot. It is plain that when the document was handed to plaintiff, it constituted a pollloitation, and that when it wac accepted by him, and his consent thereto expressed by his acting on it, it beoame a contract of mandate. Rev. C. C., 1797,, 1796, 1802, 1803, 1811. A Just cause is always understood unless the contrary is -shown. The burden of proof to show want of cause lb. on defendant. 16 A,, 366. Article 1894 provides: An agreement is net the less valid though the cause be not expressed". She oause "not expressed" in this contraot is plainly the procurement by' the defendant of the services and facilities of the plaintiff, by and through which a sale of this property might be seoured. In order to procure this chance he was willing to and did contract that he would pay the three per cent commission if the property was sold during the term of the oontraot, no matter by whoa the sale was effected. He did get the benefit of the servioes and facilities of the plaintiff for which he contracted. She consideration was real, and the contraot was valid. In the case of Gurley vs. the City of New Orleans, 41 A., 79, the Supreme Court quotes with approval the statement of Trolong that a mandate is a consensual and Imperfect synallagmatic contract by which one binds himself either gratuitously or for a [336] remuneration to manage or. direct a licit matter for which he is to account. That the principal may always revoke, ad nutum. the powers conferred, and when this occurs, re-numeration is due up to then only, observing that It is for the mandatory to guard against such results by stipulating that the entire compensation shall accrue to him by the solitary fact of his inmixtión. This is exactly what the .plaintiff did in this case. There i« nothing wrong, imuoral, inethical, or unjust in such a contract. The real aetata agent who honestly engages to endeavor to effect a sale of his principal's property incurs expenses and expends time and laoor in so doing. If he could not protect himself by such a contract, he could easily be robbed of the fruit of hie labor and expenses, or of his chance to benefit thereby. The defense set up 1$ not well founded". Ve cannot oetter express our own opinions upon the questions Involved in this case, and we adopt the reasons of the learn* ad judge as our own. *76 had occasion to pass upon similar questions in the cases of Freeman vs. Diboll, 11 Ct. App., 199, and Kostmayer vs. Landry, 12 Ct. App., 385. The case of Campbell vs. Lambert, 36 A., 37, snd the line of authorities in accordance therewith,quoted by defendant are not applicable to the relations of principal and agent disclosed in this case. There was mutuality and consideration in the contract in this case. It is true that the general jurisprudence is, and this Court has itself decided, that in order to entitle a broker to a com mission he must be the procuring cause of the sale. But this rule applies in the absence of a contrary agreement; there is no law that makes a nudum pactum a contract by which the agent shall be entitled to a commission in the case the sale is made through himself or through the owner, or through any one else. Suoh a stipulation is made precisely for the purpose of avoiding the necessity of a lawsuit to determine through whose agency the sale was consummated. See 9 C. J. 575 74 p 576 note 30. 31 [337] "The great «eight of authority supports the rule that a stipulation on a real estate broker's contract promising him a compensation in the event of a sale of the property by the o«ner himself during the life of the contraot is valid and enforcible, «here the broker has used ordinary diligence in endeavoring to make a sale of the property". 176 S. W., 1151; 43 S. W., 922; 128 S. W., 20. "As a general rule a real estate broker who is given an exclusive right to sell property is entitled to a commission on any sale thereof made by the principal either independently or through the efforts of another broker within the time specified in the contract of employment although the exclusive agent's efforts did not contribute toward the sale as when the principal himself sells the property without the oroker’s aid", id p. 622 SlOl. It is -therefore ordered that the judgment be affirmed. April 17th, 1919.