Moore v. Rich

Sykes, J., delivered the opinion of the court. The appellee as plaintiff in the circuit court sued and recovered a judgment against the appellants for four hundred and fifty dollars as a commission due him as a real estate agent for effecting the sale of certain property belonging to the appellants. A peremptory instruction was asked and refused the defendant in the lower court. The material facts in the case are as follows: The appellants had notified several real estate agents to try and sell this property. No exclusive right to sell was given to any of them. Among those with whom the property was listed for sale were the appellee and a Mr. Perkins. As the only question before the court is whether or not the appellee was the efficient and procuring cause of the sale, it will be necessary to set out in detail the testianony of the appellee, because the jury accepted this testimony as true. The appellee testified in effect that the property was listed for sale with him for eight thousand dollars by the appellant Judge Moore, arid his son-in-law, Mr. Smith, who was the agent of the appellants; that on the 11th or 12th of December, 1919, that he had some property listed for sale at Long Beach, known as the “True Property;” that Dr. Carter, who subsequently [289] bought the property from appellants, wanted to see this True property, and that he took Dr. Carter out to see it in his automobile; that he believed Dr. Carter would be interested in the Moore property, and he showed him the Moore property as they passed it en route to Long Beach, explained the value of the property to. him and called his attention to the dimensions, and what he, the appellee., thought Dr. Carter could do with the property, and why he thought it would be the best purchase for him to make; that he showed him where he- could build a couple of houses on the back, and told him the terms on whifch it could be purchased; that they looked at the True property at Long Beach and another piece of property, and then he brought Carter to town and stopped by the Moore property again; that Dr. Carter wanted to stop again, and instead of bringing him to the front he took him to the side street, showed him the depth of the lot, then took him to a restaurant for lunch; that Dr. Carter at that time told him he did not know about the property, and did not have time to go in, though he tried to get him to go in; that Dr. Carter told him if he was further interested, he would let him know. This was on Friday. On Saturday the appellee saw Mr. Smith, the agent of the appellants, and told him that he liad shown the. property to a man who was very much interested. In another place he testifies that he told Mr. Smith “that I had a good prospect, and thought I would be able to tell him definitely about the house about the first of the week, and he said, ‘All right; go to it;’ ” that ap.pellee was not able to come to town again until Tuesday evening, at which time he went to the fair grounds to see Dr. Carter, and was informed that Dr. Carter was out of town, and also learned that Dr. Carter had purchased the Moore property the day before through Mr. Perkins; the price mentioned by the appellee to Dr. 'Carter was eight thousand dollars; the price paid for the property was nine thousand dollars; that after learning of the sale appellee went to see Mr. Smith, and asked him how he came to [290] make the deal through Mr. Perkins, and that Smith said, “I did not kn6w that was your man; I Avaited a whole day before I closed up Avith Perkins, to find out if he was your man.” I said, “Why didn’t you phone me; I was at home.” líe said, “I did not think about it.” The appellee testified that he did not have the exclusive agency for the sale of this property. This, in substance, Avas all of the material testimony on behalf of the appellee. Mr. Smith testified that he called several times at the office of the appellee, to find out whether or not the appellee had been able to sell the land to his prospect, but appellee Avas not in his office. In fact, the record shows that appellee at that time was detained at home on account of illness. Neither the appellants nor Mr. Smith kneAV that Dr. Carter was the “prospect” referred to by Mr. Rich in his conversation Avith Mr. Smith. The effect of Dir. Carter’s testimony is that on the Avay to Long Beach Mr. Rich stopped in front of the Moore property and talked to him about the desirability of the place, but that at that time he had no intention of buying this property; they then Avent doAvn and looked over the True property, and on their Avay back Mr. Rich again stopped the car in front of the Moore property for a few minutes, but that he did not remember Avhat Rich had to say about the Moore property, for he did not consider buying it at that time; that a short time after that Mr. Perkins had him out sIioaving him several other places in toAvn, and upon their return to the fair grounds and after he had gotten out of the car he asked Mr. Perkins if he could sIioav him the Moore property — that he would like to look inside of it; that they looked through the house, and then Avent to Mr. Smith’s office, where the sale was consummated. He does not remember whether Mr. Rich made him any price on the property or stated any terms of sale. He was then asked if any other real estate agent had ever shown him that property, to Avhich he replied: A. I had been out Avith several — some three or four— real estate men, and had seen the property, and we had [291] talked a little about the property in passing, but had not stopped and gone in. “Q. Had you been advised it ivas for sale by other real estate agents? A. I ivas advised it was for sale, but I was not interested. “Q. . And you said you were not interested at the time it Avas slioAvn you by Mr. Rich? A. No, sir; at that time I AA’as not interested.” He testified further that the first time he ever stopped and looked at the property Avas Avith Mr. Rich. A part of his cross-examination is as follows: “Q. Mr. Perkins did not suggest to you coming to see the Moore property at that time? A. No, sir; I asked him if he could not carry me to see it. Q. You did come cIoavti and vieAV the property again? A. I came with Mr. Perkins, and I Avent through the house at that time. “Q. The reason of that was because Mr. Rich had showed it to you the day before, and you had your mind on it? A. I can’t say that is true; something else arose during the night or morning that caused me to think about Avanting this property. I can’t say positively that Mr. Rich did not have something to do with putting the property in my mind.” Mr. Perkins was paid a commission for the sale-of this property. From this testimony it is manifest that the appellee, Rich, was not the efficient and proximate cause of the sale of this property, and is therefore not entitled to recover this commission. It is undisputed in the record that several other real estate agents besides Mr. Rich had mentioned this Moore property to Dr. Carter, though Mr. Rich was the first one Avho stopped in front of the property and pointed it out to Dr. Carter. It is manifest from Dr. Carter’s testimony that Mr. Rich did not interest him in the property at that time. In fact he Avas so little interested in it that he failed to remember that Mr. Rich had priced it for one thousand dollars less than he paid for it a day or tAvo [292] later. Dr. .Carter further testified that “something else arose during the night or morning that caused me to think about wanting this property;” what that was the record does not show. The appellee in this,case did not inform the appellants, nor their agent, that Dr. Carter was a possible purchaser; neither did he bring the vendors and Dr. Carter together. A case where the material facts are similar to these is that of Glascock v. Vanfleet, 100 Tenn. 603, 46 S. W. 449. See also 9 C. J. 611, section 95 et seq.; 4 R. C. L. section 57, p. 319; Ward v. Fletcher, 124 Miss. 224; the note to the case of Hoagley v. Savings Bank, 44 L. R. A. 321, also reported in 71 Conn. 599, 42 Atl. 667. The peremptory instruction requested by tbe defendants in the court below should have been given. Reversed, and judgment in this court for the appellants. Reversed, and judgment here for appellants. Reversed.