McWilliams v. Dawes

BT; WIDDIAM A. BEIL, JUDGE: This is a suit to recover brokerage fees in the sum of One Hundred and Eighty Dollars ($180.00) and the additional 25$ of said amount as attorney's fees, all of which is claimed under a certain contract entered into between plaintiff and defendant on April 00, 1918, whereby plaintiff was given the exclusive employment as agent, to sell certain real estate in this city, belonging to defendant. It is alleged in the petition that the said written contract of employment stipulated that plaintiff should be continuously employed as defendant's agent, and should remain such until defendant should oancel plaintiff's employment by written revocation. It is further alleged that the contract stipulated also that in case the property was sold during the existence of the contract, that no matter by whom the said property was sold, the commission of 5$ should be due to plaintiff together with 26$ additional as attorney's fees, if suit was brought to enforce the contract. It is then alleged that plaintiff advertised the property for sale, showed it to numerous prospective buyers, and did all in hi3 power to effect a sale of the property, all at his own expense, and that while the said contract of employment was in force, the property of petitioner was sold by her for the sum of Six Thousand Dollars ($6,000.00) on August 26, 1919, and that petitioner never having revoked the contract made with plaintiff, there beoa<|)kCdue to plaintiff under the stipulations aforementioned, a commission of 3$ on the said $6,000.00, or the sum of One Hundred and Eighty Dollars (§180.00), together with an additional 26$ of said amount, attorney's fees, which — 579 — petitioner would have to pay for the employment of counsel in bringing this suit. The petition eonoludes with the averment that amicable demand was made in vain upon defendant for the payment of the oonmission as herein sued upon. The prayer is for judgment in the amounts above stated with legal interest on the whole amount claimed from August 26, 1919 until paid. The contract in Question was annexed to and made part of the petition Defendant admits the contract ana all of the recitals therein set forth, and that plaintiff was employed by her under said contraot, but denied that the contract was never revoked or modified, and also denies that it remained in full force and effect on August 26th, 1919, without modification or revocation. It is further admitted that the property was sold on the date just mentioned for the price of §6,000.00. ■Further answering, defendant alleges that on or about August 10th, 1918, while accompanied by a friend, she called at plaintiff's office and finding him absent therefrom, told his representative that she desired to revoke or modify the contract existing between her and the plaintiff, in that she no longer would oonsent to plaintiff's having the exclusive right to sell her property, but that if he procured a purchaser for her, or made a sale of it, she would pay a commission to him as she would to anyone else who might effect a sale, and that this instruction given to plaintiff's clerk was accepted by the clerk, who said that the matter would be fixed, and that report of defendant's wishes would accordingly be made by her to plaintiff. Further answering, defendant says that acting under the belief that she had succeeded in revoking or modifying the oontraot, she placed the property in the hands of another — 580 — agent, who subsequently sold it, and to whom she paid the brokerage. It is also alleged by defendant that not hearing, from plaintiff until after the sale by the second agent had been consummated, nearly one and a half years since the signing of the oontract herein sued upon, and fully one year after its revocation, that she had every.reason to believe that plaintiff had acquiesced in the modification or revocation of the contract. The answer concludes with the averment that plaintiff did not effect the sale of her property, nor did he procure a purchaser. At the trial of this suit in the lower court, testimony was admitted over plaintiff’s objection to the effect in substance of what was alleged in defendant's answer, tlst is, to the verbal revocation of the written contract. The objection as made being overruled, plaintiff reserved a bill of exception, and the matter being before this court, we are of the opinion that the verbal evidence offered by defendant in an attempt to vary or contradict the written contract herein sued upon, was erroneously admitted. The rule of evidence which properly excludes the testimony admitted in this dase is found in the Revised Civil Code, Art, 2276: "neither shall parol evidence be admitted against or beyond what is contained in the acts, nor on what may have been said before, or at the time of making them,or since." This article has been upheld by a long line of decisions^ and is further noted under the general rule of evidence in 22 Corpus Juris Verbo: VERBAL EVIDHilOE. Par. 1459. Contracts: (1) General Rule: "The most usual application of the parol evidence rule is with respect to contracts, a3 to which it is established that in the absence of fraud or mistake parol or intrinsic evidence is not — 581 — admissible to vary, add to, modify, or contradict the terms or provisions of the written instrument by showing the intentions of the parties or their real agreement with reference to the subject matter to have been different from what is expressed in the writing; for where the parties have deliberately put their engagements it to writing in such terms as import a legal obligation, without any uncertainty as to the object or extent of their engagement, all previous negotiations and agreements with reference to the subject matter are presumed to have been merged in the written contract, and the whole engagement of the parties and the extent of their undertaking is presumed to have been reduced to writing. The rule, however, goes evqn farther than this, and it has been established that where the instrument is free from ambiguity and is in itself susceptible of a clear and sensible construction, parol or extrinsic evidence is not admissible even to explain its meaning or determine the construction of the writing." La. - McGuigin v. Boyle, 1 La. A. (Orleans) 164. La. - Weinberger v. Merchants' Ins. Co., 41 La. Ann. 31, 5 3 738. La. - Robinson v. Britton, 137 La. 863, 69 S. 282; Block's Succ., 137 La. 303, 68 S 618; Egan v. Hotel Grunewald Co., 134 La. 740, 64 S. 698; Hafner Mfg. Co. v. Lieber Lumber etc. Co., 127 La., 348, 53 S 646; Wells v. Blackman, 181 La. 394, 46 S 437; Murphy v. Hussey, 117 La. 390, 41 S 693; Hebert v. Dupaty, 43 La. Ann. 343, 7 S 580; Porter v. Sandidge, 32 La. Ann. 449; McWilliams v. Reith, 149 La. 298; Ware v. Allen, 128 U.S. 595. (2) Wharton, Evidence 1014. In the case of Freeman v. Diboll, 11 Orl. App. 199, under conditions quite similar to those now under consideration, this court decided "that the provisions of the contract being clear and unambiguous, parol testimony varying its terms was properly rejeotéd." In this same case the court ruled that additional evidence offered for the purpose of establishing by whose effort the sale of the property had been consummated, was also properly rejected, for the reason that the agency of the plaintiff or real estate broker being shown to be exclusive under the terms of the contract, any other evidence as to other parties having consummated the sale was immaterial. The court ruled in the ease just cited as follows: — 582 — "Where the oontraot of a real estate broker confers on him the exclusive agency to sell the property, and negatives the right of the owner to sell or negotiate for its sale, the broker is. entitled to his commission if, during the term of the contraot, a sale is effected by the owner or by another broker, on the • latter's behalf." A similar ruling was made by this court in the case of Kostmeyer v, Landry, 12 Orl. App. p. 385, and again in the more recent case of Harvey v. Hirsh (unreported) No. 7518 of the docket of this court. In the last case Just cited, the contraot sued upon was in part as follows: "I will notify my agent in writing, and give him ninety days' notice if I desire this contraot discontinued - - - when this property is sold, I agree to bind myself to pay my agentSall over ‡4,500 for their commission, no matter by whom the property has been sold." Interpreting the oontraot just above quoted, which is in many respects almost identical with the one herein sued upon, we have held that the great weight of authority supports the rule that a stipulation in a real estate broker's oontraot promising him a compensation, even though a sale of the property be made by the owner himself during the life of the contract, is valid and enforceable, where the broker has used ordinary diligence in endeavoring to make the sale of the property. 9 C.J. p. 575, Par. 74, Note 30 - 31; Futrel v. Reeves, 166 Ky. 282, 176 S.W. 1151. Further conclusions of this oourt in. the case of Harvey v. Hirsh are as follows: "It is true that the general jurisprudence is, and this court has itself decided, that in order to entitle a broker to a commission, he must be the procuring oause of the sale. But this rule applies in the absence of a oontrary agreement; there is no law that makes a nudum pactum a oontraot by whioh the agent shall be entitled to a o omission in the case a sale is made through himself or through the owner or through anyone else. — 583 — Suoh stipulation is made precisely for the purpose of avoiding the necessity of-a law suit to determine through whose agency the sale was consummated." Ihe law is concisely stated in Corpus Juris as follows: "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 within the contract of employment, although the exclusive agent's efforts did not contribute towards the sale, when the principal himself sells the property without the broker's aid." 9 C.J. p. 622, par. 101. We think, as above stated, that the testimony admitted in this case going to show that a verbal revocation of the contract sued upon had been effected, was an erroneous admission, but even though consideration be given to such evidence, there is positive and other evidence in the record to the effect that the plaintiff made frequent efforts to sell the property of defendant, and had several interviews with her and telephone conversations regarding it, subsequent to the alleged sals by the other broker, to whom the defendant, in violation of her contract, delegated additional authority to sell her property. It further appears that after the plaintiff had testified to these facts just mentioned, that defendant was recalled to the witness stand, and when asked to affirm or deny plaintiff's testimony concerning his transactions with her subsequent to her attempted revocation of the contract, she could not in any manner be positive as to whether or not such conversations or interviews had ever ooeurred, contenting herself with the statement that she did not remember ever hearing from plaintiff at all, but admitting that she- had learned from neighbors that the property had been shown to various prospective purchasers. — 584 — We have considered the authorities oited by counsel for defendant, and find them Inapplicable to the facts of this case, for the reason that in those oited eases parties to the written contract had entered into a new agreement as to some part of the original contract, and it was rightly ruled that parol evidence could under such conditions be introduced to prove the new agreement. The facts of the case now under consideration are ijuite to the contrary, in that the parol evidence offered was for the purpose of proving a revocation of, and not a change in the original contract, and was particularly offered in substantiation of the averments of defendant's answer to the effect that she had attempted a verbal revocation in direct disregard of the specific provision in the original contract that the said contract could uot be at any time revoked except by a written notice. plaintiff and appellee, in answering the appeal herein taken, prays that the judgment appealed from be affirmed, and that damages for frivolous appeal be allowed herein. ,iu find from the record of this case no ground for damages as herein additionally prayed for, and same is therefore denied. Ihe judgment herein appealed from is, in our opinion correct, and the same is hereby affirmed, at defendant's oost in both courts. JPBGMBira AgEIBMSD. June 30th, 1922