24 N.W.2d 649 | Neb. | 1946
In this action plaintiffs Andrews and Watts sued the defendant to recover a commission in the amount of $1,05.0 for the sale of real estate. Mrs. Dehner, the owner of the property, did not contest the action and paid the amount claimed into court. The Byron Reed Company', a corporation, filed a petition in intervention, alleging that it was the agent for Mrs. Dehner in the sale of the property; that plaintiffs solicited its aid and cooperation in consummating the sale; that plaintiffs orally agreed that it should receive one-half of the commission; that it performed services of value and represented Mrs. Dehner; that according to the contract and according to the usage and custom of real-estate agents, it was entitled to one-half of the commission; that in the action of Izzie Garsick v. Hattie V. Dehner, 145 Neb. 73, 15 N. W. 2d 235, plaintiff Andrews and his partner Huffman testified that it acted with the plaintiffs in nego
Plaintiffs answered, denying generally, and prayed for a dismissal of the petition in intervention.
Thereafter the matter went to trial as an action in equity between the plaintiffs and the Byron Reed Company to' determine whether or not the Byron Reed Company was entitled to one-half the commission. The trial court found generally for the Byron Reed Company, and ordered the $525 paid to it. Plaintiffs appeal. We affirm the decree of the trial court.
For convenience the Byron Reed Company will be referred to hereinafter as the defendant.
The two plaintiffs together with one Howard Huffman were associated in the real-estate business under the name of City .Loan Realty Company. The exact relationship is not disclosed, except that the three men were doing business under an understanding that all commissions earned, on any business produced by any of them, would be divided equally. All three had something to do with this transaction at different times and in effect worked together on it.
Garsick contacted plaintiff Watts and executed a proposed contract of purchase of the property for $20,000, with a $5,000 cash payment. The three associates conferred, and knowing that defendant was Mrs. Dehner’s representative in renting the property, decided to ask defendant to submit the proposition to her. They submitted the proposal bo defendant, and it in turn submitted the proposal to Mrs. Dehner. She rejected it. A conference then was held by Garsick and one of the associates with defendant’s representatives, resulting in a suggestion that the price to be paid be increased and all cash above a mortgage be paid. Garsick’s second proposal did not include all cash.
The defendant then submitted to plaintiffs a proposed contract calling for the sale at $21,000, to be paid all cash, subject to the mortgage, and including nine gas stoves and nine electric refrigerators. Garsick refused to sign the contract because of the reduced number of appliances. Plaintiffs then prepared another contract substantially as proposed by defendant, but increasing the number of appliances to ten. Defendant refused to submit that contract to Mrs. Dehner and the plaintiffs’ evidence is that defendant threw it back at them. Apparently Garsick then refused to deal further with defendant and instructed plaintiffs to deal with Mrs. Dehner direct. That they did. Mrs. Dehner" came to their office and signed the contract, and thereafter notified defendant of the contract. Two controversies immediately arose. Defendant accused plaintiffs of improper conduct in going' around them and to Mrs. Dehner direct. Mrs. Dehner refused to go ahead with the contract. Plaintiff Andrews and Huffman then went to defendant’s officer, gave him a copy of the contract, told of their difficulty with Mrs. Dehner, and asked him to “Take over and close it.” Defendant tried unsuccessfully to persuade Mrs. Dehner to proceed with the contract. At the trial of the specific performance action, defendant’s officers testified as to the transaction as witnesses for Mrs. Dehner. It is not claimed that their testimony was false or harmful to the cause of Garsick.
It appears that sometime after the events recited, Huffman left the association and in a settlement between him and plaintiff Andrews, Huffman was given credit on a note for $333.33 for commissions due on this sale. It is obvious that any settlement between the associates could not affect the rights of defendant.
Plaintiffs next argue that there was no agreement to divide commissions and that in the absence of one, the defendant cannot prevail. But defendant pleaded not only an agreement, but the usage and custom of real-estate agents.
Neither party offered an impartial expert. Both testified as to the custom. Defendant’s officers testified that the established custom in Omaha was an equal division of the' commission where one real-estate broker represents the purchaser and one real-estate broker represents the seller. Plaintiff Andrews testified that where one of the brokers had a written listing of the property for sale the custom was to divide the commission, but that in the absence of a listing, an agreement must be reached. Plaintiff Watts testified likewise, and also that “I don’t believe it is the custom of any dealer to try to cut through anybody if they had their cooperation in assisting to complete a deal.”
It is clear that there was no express agreement as to the division of the commission, and also that neither of the parties had this property listed for sale.
Does the custom require a division of the commission only where one or the other party has a listing of the property? We think plaintiffs have answered the question. Plaintiffs testified that before they contacted defendant they discussed the matter and agreed that if they were to close the deal through defendant, they would have to share the commission with it. They further testified that had
We have here this factual situation. Plaintiffs sought the assistance of the defendant in effecting this purchase, intending and expecting when they did it that defendant should receive compensation from them if the sale wás •effected. They testify that had the first proposal of sale been accepted, they would have split the commission. Defendant undertook to assist, intending and expecting to receive compensation from plaintiffs if the sale was effected, although nothing was agreed to about a division of the commission. We think this constituted an implied contract to pay in the event the purchase was completed and the commission earned. That the commission was earned cannot be questioned, inasmuch as Mrs. Dehner has paid it. Defendant furnished the assistance asked and continued to do so after the first proposal was rejected and the final contract executed. Plaintiffs received all the assistance that they were willing to accept. Defendant has performed.
The question is the amount to be paid. Admittedly there was no agreement as to the amount of the payment to be made defendant. Defendant has proved the custom. We think it sufficient.
The rule is this, as we gather it from the texts and the cases: Where a contract exists regarding a subject matter, but is silent in its terms in one particular element, and
Tested by the above rule, the defendant should ■ prevail.
The decree of the district court is affirmed.
Affirmed.