Willes v. Smith

Cole, O. J. In March, 1887, the defendant was the owner of certain lots situated in the city of Ashland. He employed the plaintiff, a real-estate broker, to find a purchaser for the lots for $4,000, payable upon specified terms. The plaintiff procured two gentlemen who proposed to buy the lots jointly, and introduced them to the defendant, who accepted them as purchasers; and they definitely agreed to [84] purchase the property upon the terms fixed by the defendant, paid the sum of $200 on account of the purchase price, and received the written contract of sale which appears in evidence. The plaintiff sues for his commissions. The learned circuit court, after the evidence on both sides was given, directed a verdict for the defendant on the ground that the purchasers had never completed the purchase; that the written contract was not an absolute agreement of purchase, but that the performance thereof was optional with the purchasers, who refused to carry it out. There is really no. dispute about the facts, and the case turns wholly upon the construction of the contract which was entered into by the parties. By the contract the defendant, in effect, sold the lots in question to Seymour and Long for $4,000, on the following terms: One half cash; the balance to be paid in one year, with interest at the rate of eight per cent, per annum. Abstract of title to be furnished without delay, and the warranty deed to be delivered within ten days thereafter, upon the receipt of cash payment and the securities for the deferred payment. It was agreed and understood by the purchasers that if the title was not good and could not be made good, the agreement should be void and the vendor would not be liable for any damages. Two hundred dollars was paid on the contract when it was executed, as “ earnest money.” In case the title was not good and could not be made good, the $200 earnest money paid by the purchasers was to be returned to them. The contract then reads: “ If the title is found to be good, and nevertheless not accepted by the purchasers (the deed being tendered) within the time and as herein named, said earnest money is forfeited as the consideration paid for this agreement, and the owner of said premises shall be considered to have fully performed on his part, and may declare the contract terminated. Time is made the essence of the agreement.” This agreement was signed by [85] the defendant, and the purchasers, in writing, agreed to its terms. Now the plaintiffs contention is that the instrument is a complete and valid agreement of purchase and sale of the property; that if the title was good the vendees were absolutely bound to accept the property and pay the purchase price, unless the vendor elected to waive a performance on their part and retain the property. We think this construction of the contract is the correct one. ¥e have no doubt that the defendant could have enforced a specific performance of the contract had he seen fit to do so. The option given to terminate the contract was for the benefit of the vendor solely. He could insist upon a performance by the vendees, or release them from the contract, retain the $200, and keep the property. The $200 paid was not, strictly speaking, “earnest money,” — that is, a sum paid for the purpose of binding the bargain,— though so denominated. It was in the nature of liquidated damages for a breach of the contract in case the vendees refused to perform. Rut that the purchasers were absolutely bound to accept the property and pay for it according to the terms of the agreement, we think is quite clear. The learned circuit judge held that the contract gave the purchasers an option for ten days to determine whether they would purchase upon the specified terms or not. But this view we deem erroneous. The provision in the contract was intended for the benefit of the vendor, who could avail himself of it at his election, or waive it and enforce performance of the contract by the vendees by a suit in equity. But the vendees were not entitled to avoid the contract, for it was absolutely binding upon them. This is the view taken of a similar agreement by the supreme court of Minnesota in Dana v. St. Paul Investment Co. 42 Minn. 194; and we think it is a correct interpretation of such contracts. That was an action to enforce specific performance of the contract, and the court [86] held that it was binding upon the vendee, notwithstanding the vendor had the right to avoid the contract at his option; such provision being intended for his benefit, while the contract was obligatory on the vendee. It is true, in this case the vendees did not formally sign the contract, but they assented to its terms in writing, and accepted it. The vendees were unquestionably bound by it. Lowber v. Connit, 36 Wis. 176. It is not denied that the abstract was furnished in time, and the title was found to be good. Put the defendant saw fit to waive performance and retain the property and the $200 which had been agreed upon as the amount of liquidated damages for a breach on the part of the vendees. It appears, therefore, that the plaintiff procured persons willing and able to purchase the property on the terms fixed by the defendant, and consequently earned his commissions; for the rule of law is well settled in this state that a broker employed to make, a sale of property at a price stated or fixed by the owner is entitled to his commissions, when he produces a party who makes a purchase. And it is, in general, enough in such a case that the broker produce a party ready to make the purchase at a satisfactory price; and the principal cannot relieve himself; from liability by capricious refusal to consummate the sale, or by a voluntary act of his own, disabling him from performance. Stewart v. Mather, 32 Wis. 344; Delaplaine v. Turnley, 44 Wis. 31; O'Connor v. Semple, 57 Wis. 243. There was no failure in this case to produce a purchaser who entered into a valid contract of purchase which could have been enforced. That it was not enforced was no fault of the plaintiff. He performed all he undertook to do, and procured a sale to be made. He is surely entitled to his commissions, though the defendant saw fit to abandon the sale. It is no answer to say the purchasers refused to carry out the contract. The defendant had it in his power to enforce its performance. There is nothing to show that the pur [87] chasers were not responsible, and. we cannot presume that they were not. As the plaintiff accomplished all he was employed to do, can there be a doubt about his right to recover his commissions ? Under the decisions of this and other courts which are cited on the briefs of counsel, the plaintiff fairly earned his commissions. "We do not understand that the defendant’s counsel controverted this proposition of law, if the contract entered into was valid and binding upon the purchasers, as we have held it was. It follows from these views that the judgment of the circuit court must be reversed, and the cause remanded for a new trial. By the Court.— It is so ordered.