Sotham v. Kern

Clark, J. On October 13, 1919, for a consideration, defendant agreed in writing with plaintiff, the agreement being written by defendant, that at any time within 60 days from date he would convey to any person or persons as plaintiff might direct his farm in St. Clair county. The price was to be $64,750 payable as follows: “One-third cash and the balance in two or three equal annual payments.” The agreement also provided: “It is agreed by and between the parties hereto, that if the said party of the second part (plaintiff) at the expiration of the aforesaid limited time shall have [7] declined or omitted to make application for the purchase of said land at the price aforesaid, then this instrument shall be void,” etc. At the time defendant also gave plaintiff a writing, as follows: “October 13, 1919. “To Whom It May Concern: “This is to certify that I have this day given Mr. T. F. B. Sotham, an option on my farm in East China township for the sum of sixty-four thousand seven hundred fifty dollars, one-third of which is to be cash and balance as stated. Mr. Sotham is to receive a commission of 5 per cent, on the first cash payment. “C. Kern.” On November 5th, plaintiff found a purchaser, Grindley, and assigned his interest in the agreement to him, of which defendant had knowledg-e. On November 24th defendant gave plaintiff another paper: “Nov. 24th, 1919. “Mr. T. F. B. Sotham, “St. Clair, Mich. “In reference to the matter of the first payment of $21,583.33, as provided in the attached option contract, of October 13, 1919, I hereby agree to accept payment of $6,583.33 on or before December 10, 1919, and I will accept the balance of said first payment of fifteen thousand dollars on or before April 10, 1920, at which time possession is to be given and sale closed, otherwise said contract shall remain in force. (Signed) “C. Kern.” And then the following: “The above payments are each extended for thirty days in consideration of five hundred dollars this day paid, same to apply on account. (Signed) “C. Kern.” The $500 to be applied on account was paid by Grindley to defendant. Within the time and on January 8, 1920, Grindley and wife gave to defendant a letter stating that they had decided to purchase in [8] accordance with the “option contract and amendments thereto” and that they were ready to close the deal, and requested a land contract with abstract and tax history. On February 3d the land contract was made by defendant and wife and Grindley. and wife, the price being $64,750, payable as follows: “February 3, 1920, $6,750; May 10, 1920, $10,000; February 1, 1921, $10,000; February 1, 1922, $10,000; February 1,1923, $10,000; February 1, 1924, $18,000; with interest,” etc. Plaintiff not having his commission, sued to recover 5 per cent, of one-third of the purchase price as per original agreement. Defendant testified: “Q. Under any condition Mr. Sotham was to get 5 per cent, commission on $21,583? “A. That is what I understood. “Q. That is your understanding now? “A. Yes, sir. * * * “Q. Do you claim now by reason of your extension of the contract with Mr. Grindley you were released from paying Mr. Sotham commission on the first agreed payment, $21,583? “A. No.” A verdict was directed for plaintiff for the amount of his claim with interest and judgment entered. Defendant brings error. It is said that the agreement to pay commission is insufficient because of 3 Comp. Laws 1915, § 11981, subd. 5, and Paul v. Graham, 193 Mich. 447. This is fully answered by the opinion in Badger v. Finlayson, 219 Mich. 660. The land contract as executed did not require one-third of the price to be paid down as originally contemplated. The total of deferred payments exceeded two-thirds of the contract price. But this was satisfactory to defendant. It was said in Rice-Wray v. Palma, 216 Mich. 324: “By deferring the time, and himself fixing the [9] manner of payment, he could not defeat the plaintiff’s present right to his commission.” Defendant insists that plaintiff did not perform the contract within the time limited. If plaintiff produced within the time a customer who was ready, able, and willing to purchase on defendant’s terms, his commission was then earned. See McOmber v. Campion, 219 Mich. 604. It was not necessary that the deal between defendant and Grindley be completed before plaintiff had earned his commission. Blakeslee v. Peabody, 180 Mich. 408. Plaintiff’s undertaking was not to consummate a sale (Horton v. Immen, 145 Mich. 438), but to find a purchaser. 9 C. J. p. 595. The original agreement did not require a sale to be consummated within the 60 days but provided for an application for purchase at the price named, and of course the applicant should be a person able, ready and willing to purchase on defendant’s terms. The effect of the amendments to the original agreement, in addition to modifying the terms of payment to be written into a contract, was to extend the time in which to make the application tq purchase. This was the construction placed on the writings by the parties, including defendant, as he so testified. Grindley and wife made application to purchase within the time. They were ready, able and willing to purchase. They asked no extension of time. That they requested to be shown abstract and tax history is unimportant for defendant raised no objection to such request and treated their application as a compliance with the agreement. See 4 R. C. L. p. 313. Other questions are discussed by counsel; but we find no reversible error. Judgment affirmed. Fellows, C. J., and Wiest, McDonald, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit.