129 So. 679 | La. | 1930
This suit is brought by a real estate broker claiming a commission of $1,200; that is, 4 per cent. on $30,000. The case was tried by *91 a jury, at the request of the defendant, and the jury gave a verdict for the plaintiff for the $1,200, with legal interest from judicial demand. Judgment was rendered accordingly. The Court of Appeal (126 So. 264) reversed the judgment and rejected the plaintiff's demand; Judge Janvier dissenting. The case is here on a writ of review.
The suit is founded upon a written contract, by which the defendant employed the plaintiff as her exclusive agent to sell her property for $32,000 cash, "or for any other price or terms hereafter agreed upon," and agreed to pay plaintiff a commission of 4 per cent. "on the gross amount of any agreement to sell or exchange bearing on said property," made during the existence of the contract, "or on the gross amount of any such agreement made within forty-five days after the expiration or termination of this contract, with any one to whom said property has been quoted during the term of this contract." The contract contained also an agreement on the part of Mrs. Friedman to refer all applicants to the agent, Alex F. Dreyfus Company, Inc., and not to interfere in the sale of the property during the term of the contract. It was stipulated that the contract was to remain in force for a period of 30 days. On the third day after the expiration of the 30-day period, Mrs. Friedman, through another real estate agent, transferred the property to one Max Hochfelder, at the valuation of $30,000, in exchange for his property valued at $103,000; Hochfelder receiving the difference, $73,000, in cash. The plaintiff, Alex F. Dreyfus Company, during the 30-day period, had been negotiating with Hochfelder for the sale of Mrs. Friedman's property to him, or for an exchange of her property for his, and had informed her of the negotiations before the 30-day term had expired. This suit is therefore based upon the clause in the contract, by which Mrs. Friedman *92
agreed to pay Alex F. Dreyfus Company, Inc., the commission of 4 per cent. on the gross amount of any agreement of sale or exchange of her property, for any price agreed upon, within 45 days after the expiration of the 30-day term of the contract, to any one to whom the Dreyfus Company had quoted the property during the 30-day term of the contract. The two judges of the Court of Appeal who concurred in the decision of this case declared, in the prevailing opinion which they rendered, that they would affirm the judgment of the civil district court if the case could be distinguished from Clesi v. Cooney,
Counsel for Mrs. Friedman cite also O'Neal v. Southland Lumber Co.,
The plaintiff claimed an attorney's fee, under the contract, but the fee was not allowed by the verdict of the jury, and no application was made by plaintiff for a new trial. On the contrary, the application of the defendant for a new trial was resisted. We decline, therefore, to amend the judgment of the civil district court in that respect, even though plaintiff renewed the demand for the attorney's fee in answer to the defendant's appeal in the Court of Appeal.
The judgment of the Court of Appeal is annulled, and the judgment of the civil district court is reinstated and affirmed at defendant's cost. *95