Chandler v. Gaines-Ferguson Realty Co.

Smith,- J. This is an action to recover a commission for an alleged sale of real estate. Appellees, who were plaintiffs below, are partners in the real estate business, and on June 25, 1918, entered into a contract with appellant whereby he gave them the right, for a period of twelve months, to sell his farm, containing 320 acres, and farming implements, for $9,000 net to the owner, of which $4,500 was to be paid in cash, and the remainder in one, two, three, four, five and six years, at 8 per cent. Appellees were to receive as commissions the excess over $9,000. Appellant wa's notified of the sale of the property to J. W. C. Bell, and on the 26th day of June, 1919, in furtherance of said sale, entered into a written contract with Bell whereby he agreed to convey the land to Bell upon the terms aforesaid and to furnish an abstract showing a marketable title. Appellant failed to furnish the abstract, and, according to the testimony on the part of appellees, refused to consummate the deal with Bell, who was ready, willing and able to buy the lands pursuant to the contract of purchase, which Bell had been induced to sign through -the efforts of appellees. The testimony shows that appellee priced the land to Bell at $10,000, but Bell refused to pay that price unless the mules, wagon harness, and cattle on the place were included. Appellant declined that proposition, but did agree to include his cattle, and a contract was entered into whereby Bell agreed to pay the sum of $5,000 cash, and the balance in annual payments of a thousand dollars each; and to secure these deferred payments appellant agreed to take a second mortgage on the land. A paragraph of appellant’s answer set up the fact that the land in question embraced his homestead, and that the contract for its sale was void because his wife had not joined in its execution. A demurrer to this part of the answer was sustained, and exceptions saved. Other errors are assigned which we will discuss in their appropriate order. We think the demurrer was properly sustained. There is here no prayer for the specific performance of the contract of sale; but the purpose of the suit is to recover the value of services rendered. The case on this point is ruled by the opinion of the court in the case of Branch v. Moore, 84 Ark. 469. It is next contended that the contract of sale between appellant and Bell did not conform to the terms upon which appellant authorized appellees to sell. And this appears to be true. But appellant consented to the modification, and executed the contract with Bell which embodied the changes resulting from the negotiations had between appellees and 'Bell, and the claim for commissions can not, therefore, be defeated by the fact that changes were made. Stiewel v. Lally, 89 Ark. 195; Hodges v. Bayley, 102 Ark. 200. It is contended that the agency contract was good for only one year, and that the contract of sale between appellant and Bell was dated one day after the twelve months had expired. But the court submitted to the jury the question whether the terms of the sale had been agreed upon, reported to and accepted by appellant before the year expired, and properly told the jury that, if they so found, plaintiffs would be entitled to recover, notwithstanding the written contract was not signed until after the expiration of the year. Stiewel v. Lally, 89 Ark. 195. It is next contended that the testimony does not show that Bell was ready and able to perform his contract. But that question of fact was submitted to the jury. Bell testified that he was able to buy, and would have done so, and it is undisputed that appellant was several times requested both by appellees and by Bell to furnish the abstract of the title which the contract of sale required to be furnished; but failed to do so. Upon the contrary, appellant admitted that before the first payment was due he had advised Bell that his wife would not sign the deed. Objection was made to the testimony of witnesses Wray and Williams, who were permitted to testify as to the value of the cattle included in the contract of sale, upon the ground that the cattle were not included in the original agency contract; and the admission of this testimony is assigned as error. It is true that contract did not authorize the sale of anything but the farm and farming implements, and fixed the agent’s compensation at the excess over $9,000. The court told the jury that if they found for the plaintiff they would fix the amount of the recovery at the difference between nine thousand and ten thousand dollars, “less whatever sum you may find, from the evidence, was a fair value of the cattle which was included in the price which Bell agreed to pay for the property.” In other words, appellees had sold the land and farming implements for a thousand dollars more than the agency contract entitled appellant to receive, but in making the contract of sale the cattle were included, and it was, therefore, proper to deduct the value of the cattle from the thousand dollars which the appellees would otherwise have received, and the objected testimony was material to- establish that value. Objection was also made to the admission in evidence of a rent contract between Bell and appellant. This testimony was competent to show that the parties mutually understood a final binding contract for the land had been closed. It is finally insisted that the court erred in refusing to permit appellant’s counsel to argue to the jury that there was no liability on appellant’s part because there bad been no tender of the cash payment and notes for the deferred payments. But for reasons already stated, it is apparent that no error was committed in this respect. No error appearing, the judgment is affirmed.