Arrington v. Cary

| Tenn. | Dec 15, 1875

Lea, Sp. J.,

delivered the opinion of the court.

Arrington & Farrar, being real estate • agents or .brokers in the city of Nashville, were employed by Eugene Cary to sell, or aid him in selling, a house and lot in Edgefield, on Russell street, belonging to him. They received from him a description of the property, entered the same in their books, and made publication in the advertising columns in the newspapers and displayed the same on their bulletin board. He directed them to sell for $13,000, one-third cash, the remainder in one and two years with interest. M. M. Brien, Jr., being desirous of purchasing a home, and seeing the advertisement of Arrington & Farrar, called on them, and was shown a description of the property on their books and bulletin boards. Arring-ton took him in his buggy and showed him the property they had for sale in Edgefield. He showed them the house of defendant Cary. Brien was pleased with Cary’s house, but did not examine it inside, as it was occupied, and it was deemed advisable to give the occupants notice before going ini Arrington asked .Brien $14,000 for the house and lot, which he thought was too high, but declined to make any offer until ■he could make an examination of the house. These facts were communicated to Cary by Arrington. Cary then saw Brien, and went with him and examined the house. • Shortly thereafter Cary sold the house ■and lot to Brien for $10,050. After the sale Ar-rington & Farrar demanded of Cary their commissions, which he refused to pay, and they sued him in the Circuit Court at Nashville and recovered judgment for the amount of their account, which was $262.75, and Cary has . appealed to this court.

Arrington proved that it is the usual custom among real estate agents, when they obtain a purchaser and the owner effects the sale at a less price than the agent is instructed to receive, to charge full commissions on the amount for which the property sold, and that three per cent is the usual commission. In this case they had charged less than two and a half per cent, and that the sum charged was very reasonable.

Witnesses Thos. Callender and John Brown proved that they were real estate agents in the city of Nashville, that they were familiar with the customs and usages of real estate agents in that city, and by this usage it is the custom to demand commissions where the agent has taken charge of property, advertised and ■exhibited it, and it is subsequently sold by the owner to the party who applied to them and to whom they •exhibited the property. They testified that plaintiffs’ account was reasonable and according to usage and custom.

The court charged the jury, in effect, that if Cary employed Arrington & Earrar to sell his house and lot, and that they secured a' purchaser who afterwards effected a trade with Cary at a reduced price, the agents would be entitled to reasonable compensation for their services, according to the usage and custom ■of real estate agents in Nashville for similar services under similar circumstances.

The charge of the Judge is correct.

When a broker is employed to sell real estate, and produces a person who ultimately becomes a purchaser, he is entitled to .his commissions although the trade may be effected by the owner. Kimberly v. Henderson, 29 Md., 513; Richards v. Jackson, 1 Am. R., 49.

When the owner employs the agent to sell, or to assist him in the sale, if he be unwilling to pay the usual and customary commissions he should make a special contract with him, otherwise the agent will be •entitled to such reasonable commissions as, for similar services, real estate agents in that particular locality are by usage and custom entitled.