Worthen v. Stewart

Kirby, J., (after stating the facts). Appellant insists that the agreement for payment of the commission with the option contract and amendment, all in writing, definitely expressed the terms upon which the sale should be made, that he furnished a purchaser, ready, willing and ■able to buy the lands and did in fact sell them to him in accordance with the terms of the contract, and earned his commission .and was entitled to it, and that the court erred in not so instructing the jury, and in allowing the introduction of parol testimony to establish a condition to the unqualified letter of acceptance of the Poinsett County lands, in substitution for the $7,000 cash payment requested by the option contract. (1) This is not a case of a real estate broker earning his commission by finding -a purchaser, willing and able to buy the.land offered for sale. By the terms of agreement the commission was only to be paid on condition that the deal pending was finally closed, the appellant having already negotiated for the sale of the lands and received the telegram from Skeen that the deal had been closed, which was shown to appellee before the execution of the agreement to pay. commission. If the deal was closed at the time of the execution of the agreement to pay commission, there was no necessity for stating that it was .pending, and that the commission would be paid on condition that it was finally closed, for the commission was already earned in accordance with the contention of appellant and the obligation to pay would doubtless have been written without condition at all. Appellant stated that the option contract had been transferred to Skeen; and the .letter of February 24, from Stewart of unconditional acceptance of the Poinsett County lands had already been sent to him and he had received a telegram from Skeen that the deal was closed, which he showed .to appellee before he executed the commission agreement. Appellee stated that he did not like the form of agreement to pay commission already prepared by appellant and dictated the one set out herein, agreeing to pay commission on condition that the deal pending was finally closed, understanding thereby that it should be finally consummated and the lands duly transferred by proper conveyances. Appellant understood the contract -differently, and the court -did not err in permitting the jury to pass upon its meaning under proper instructions. Its terms were ambiguous certainly if there is ground for -appellant’s under-standing -of it-s meaning -and with his statements that he -showed the telegram to Skeen, stating* the deal had been closed and the conveyances should be prepared and delivered, to Stewart, before -tbe -commission agreement was executed furnishing grounds -certainly for his, Stewart’s, understanding of the meaning -of the -contract contended for by him, -that the commission -should be paid on condition that the deal was finally -completed and the l-an-ds conveyed. (2-3) Appellant’s -contention that the -court erred in not declaring -appellant’s letter -of the 24th an unconditional acceptance of the P-oimsiett County lands, in lien of the $7,000 cash payment, -without -any duty -on his part to -show the lands to .appellee, for his inspection was erroneous and the -court did not err in refusing it. The answer alleged and the testimony tended to prove that this letter prepared by Skeen, addressed to -appellant was -signed by-the appellee upon condition that the lands shonl-d be inspected and -accepted by biim -only if their value -and title were -approved, in li-en of the $7,000 cash payment required by the -option. Appellee -testified that it was signed -on this- -condition, “that he started to write, ‘-subject to -inspection’ on the letter and was dissuaded from -doing so by -appellant, who said he feared it might interfere with the consummation of the s-ale,” and agreed to notify Skeen that such w-as the condition --at the time ■ of returning the letter to him and was instructed to- do so by -ap-pelee. Appellant denied this, it i-s- true, but he '-is -concluded by the jury’s finding upon the question. ’This testimony does not come within the'rul-e of the ladmi-ss-ibility of parol contemporaneous evidence to contradict or vary the terms of a valid written instrument, but within the rule -allowing -the admission of such testimony to show that certain conditions or prerequisites were to be met or performed before the instrument executed -should become effective. In Barr C. & P. C. v. Brooks-Ozan Merc. Co., 82 Ark. 219, our court quotes with approval from Ware v. Allen, 128 U. S. 590: “We are of the opinion that this evidence shows 'that the contract upon which this suit was brought never went into effect; that the condition upon which it was to become operative never occurred, and that it is not a question -of contradicting -or varying .a written instrument by parol testimony, but that it is -one of that class of cases, well recognized in the law, by which an instrument whether delivered to a third person as an escrow, or to the obligee in it, is made to depend, as to its -going into operation, upon -events to -occur -or to he ascertained thereafter.” In Burke v. Dulaney, 153 U. S. 228, that court -said: “In -an action by the payee of a negotiable promissory note against the maker, evidence is admissible to show a parol agreement between the parties, made at the time of the making of the note, that it -should not become -operative as a note until the maker could examine the property f-or which it was to be given, and determine whether he would purchase it.” The rule is well established and has been frequently recognized in -our decisions. Graham v. Remmel, 76 Ark. 140; Barton-Parker Mfg. Co. v. Taylor, 78 Ark. 586; Main v. Oliver, 88 Ark. 383; William Brooks Medicine Co. v. Jeffries, 94 Ark. 575; American Sales Book Co. v.Whitaker, 100 Ark. 365; Pickler v. Arkansas Pkg. Co., 39 A. L. R. 127. The testimony is also -admissible under the rule requiring fidelity on the part of the agent in the transaction -of his agency. As- -stated in Doss v. Long Prairie Levee District, 96 Ark. 451, “The rule is well settled, both by the text writers and adjudicated cas-es, that where the agent is- -guilty of fraud, -dishonesty or unfaithfulness in the transaction of his agency, such conduct is a bar to the recovery by him -of wages or -compensation.” 31 Cyc. 1498; 1 Clark & Skyles on the- Law of Agency, 819; Story on Agency, & $ 333 and 334; Mechera on Agency, § § 643, 798; Tiffany on Agency, 418. (4-5) It may be that the trade was not consummated because of appellee’s inability to convey a good title to the lands, and the evidence indiciateis such was one of the causes, but. as between the parties to this suit the condition relative to the acceptance of the Poinsett County lands in lieu of the cash payment had not been performed and certainly the -deal wia,s not finally closed within the meaning of the contract 'for the payment of commission. Neither do we think the court erred in instructing the jury relative to the accord and satisfaction by the payment of a certain commission for the sale of a portion of the plantation included within this transaction. There was sufficient testimony to warrant the giving of the instruction. Finding no prejudicial error in the record, the judgment is affirmed.