Harris & White v. Stone

HART, J., (after stating the facts). It is earnestly insisted by counsel for the plaintiffs that the court erred in giving instruction number 8, which is as follows: “I charge you that the written contract introduced in evidence by the plaintiffs does not deprive the owner of the right to sell the lands himself without being liable to the plaintiffs for a commission unless the plaintiffs show by a preponderance of the evidence that they were the procuring cause of the sale.” The court did not err in giving this instruction. The instruction is in accordance with the principles of law laid down in Blumenthal v. Bridges, 91 Ark. 212. There in discussing the principles of law applicable to cases of this sort the court said: “Appellants contend that the contract was not one for exclusive agency, and that they had the right at any time before a sale was negotiated by appellee to revoke it. They rely upon numerous cases which announce the general rule that where real estate is placed in the hands of an agent or broker for sale in the ordinary way, without a stipulation to the contrary and without specifying any definite period of time within which the agent is to have the exclusive right to sell, this does not deprive the principal of the right to sell the land himself when he acts in good faith toward the agent, and that in such cases there is an implied reservation of the right of the principal to sell, free from any charge or liability for commission. See note to Hoadley v. Savings Bank of Danbury (Conn.), 44 L. R. A. 321, 23 Am. & Eng. Enc. L. 913. The same rule was announced by this court in Hill v. Jebb, 55 Ark. 574. Those cases do not, however, announce the controlling principle in this case, for here the contract expressly stipulated for a definite period of time within which the agent might make a sale. In snch case the contract implies an exclusive right to sell within the time named, without the right of the principal to revoke the agency unless there is a reservation to the contrary.” In the present case the contract did not contain a time limit within which the agents might make a sale of the property and there was an implied reservation of the right of the owner to sell the land himself free from any liability for commissions, provided he acted in good faith towards his agent. The contract, not specifying any exact period of time within which the agent was to have the exclusive right to sell, does not deprive the principal of the right to sell the land himself when he acts in good faith towards his agent. The words, “Harris & White, exclusive agents” under the circumstances, merely prohibited the placing of the property for sale in the hands of any other agent, but not the sale of the property by the owner himself. It is also insisted by counsel for the plaintiffs that the court erred in allowing parol evidence to be introduced as to the meaning of the words, “Harris & White, exclusive agents. ’ ’ This may be conceded and still does not work to the prejudice of plaintiffs. As we have just seen under the contract above recited, the right of Stone himself to sell the property thereby terminates the agency without any liability to the plaintiffs is unquestioned. Hence the testimony introduced by the defendant as to the meaning of the contract amounted to no more than to give it its legal meaning and therefore could not injure the plaintiffs. On the other hand the plaintiffs were benefited by being permitted to introduce testimony tending to show that the contract did not have that meaning. The evidence introduced by the plaintiffs and by the defendant on the question of whether or not the plaintiffs were the procuring cause of the sale by the defendant to Selle was indirect and irreconcilable conflict. The respective theories of both parties to this lawsuit on this question were correctly submitted to tbe jury in instructions numbered 6 and 7, which are as follows: “ No. 6. If you find from a preponderance of the evidence that the plaintiffs were the procuring cause of the sale of defendant’s farm, then you will find for the plaintiffs such sum as you may feel warranted from the evidence before you, although you may find that the defendant finally consummated the deal in person.” “No. 7. If you find that the plaintiffs were not the procuring cause of this sale being made and find that the defendant reserved- the right to sell his farm, and you further find that the defendant, with the help of friends, not real estate brokers, did sell his farm, then you will find for the defendant. ’ ’ The instructions do not submit to the jury the question of good faith toward the plaintiffs of Stone himself in making the sale. In the first place it may be said that no evidence was introduced even tending to impeach the good faith of Stone in himself making the sale. The conflict in the testimony was as to whether or not the plaintiffs tendered Selle as a purchaser to Stone. The instructions plainly told the jury that if such was the case, the' plaintiffs were entitled to recover commissions, and on the other hand if the plaintiffs were not the procuring cause of the sale, they were not entitled to commissions. In the second place if plaintiffs desired to have submitted to the jury the question of the good faith of the defendant in making the sale and thus terminating the agency, they should have asked a specific instruction upon this point. It will be remembered that the contract of agency was executed on October 6, 1916, and that the sale was not made by Stone until the 10th day of February, 1917, and no contention was made by the plaintiffs at the trial that a reasonable time had not elapsed for them to make the sale. As above stated, the only material conflict in the testimony was as to whether or not they had introduced Selle to the plaintiffs as a prospective purchaser of the lands. We find no prejudicial error in the record and the judgment will be affirmed.