179 Ind. 337 | Ind. | 1913
Action by appellants to recover a commission alleged due them from appellee for the sale of certain
The errors assigned and not waived are, (1) the conclusions of law, and (2) overruling motion for a new trial. No question is raised as to the sufficiency of the complaint. The material facts as stated by the court in the special findings, are in substance as follows: in 1906, The Yazoo Delta Land Company, a corporation organized under the laws of Indiana, with its main office in the city of Indianapolis, owned about 30,000 acres of timber lands in Washington and Sharkey counties, Mississippi. Appellants, Barney and Hines, are real estate brokers of Memphis, Tenn. Nov. 7, 1906, appellee, by resolution of its directors, authorized appellants to sell said lands on a commission of ten per cent with a proviso that if buyers were found by any of appellee’s stockholders or other parties, they were to divide said commission equally with the party furnishing such purchaser. This authority was limited to July 1, 1907. Appellants were to pay all expenses in showing lands to purchasers. They sold 5,693.93 acres for $85,408.80 and received a commission of $8,540.88. This sale was consummated and approved by appellee’s directors. On Jan. 24, 1907, appellants were again authorized as sole agents to sell the remainder of said lands. This commission was to extend to July 1, 1907, on certain terms and prices to be fixed by appellee with a proviso for extension of time conditionally. Appellee’s directors fixed certain prices and appellants consummated a sale of 10,050.23 acres of this land to the Interstate Cooperage Company, of Cleveland, O., for $15 per acre, which sale appellee’s directors approved and paid appellants their commissions. Later appellants were given an option
On March 3, 1908, the directors of app,ellee passed a resolution to select agents to sell the remaining lands, expressing a readiness to sell to any purchaser produced by appellants who did not have the lands, under consideration when they wanted to take up this matter again. The directors of appellee granted an option to Messrs. Davis and Steele, and fixed prices at which they might sell. These men represented themselves as agents of New York parties and denied any connections whatever with the Interstate Cooperage Company. Appellee did nothing to hinder or prevent ap
The court stated as its conclusions of law on the special findings, (1) appellants had full and ample opportunity to consummate their proposed sale of said lands to the Interstate Cooperage Company prior to Feb. 21, 1908, (2) appellee had full and complete right to offer said lands for sale either directly or through agents selected by it and on terms acceptable by 'them, to any person whomsoever, after the receipt of appellants’ letter of Feb. 21, 1908, (3) appellants had no right to demand that any future negotiations
Appellants, before commencing this action, made demand in writing upon appellee for the commission claimed by them for procuring a purchaser of said lands. This demand was refused upon the theory that the contract and option which appellee gave appellants on the remainder of the Mississippi lands had expired and at the time appellee’s directors confirmed the option granted to Davis, they were acting in good faith and did not know at that time Davis was negotiating
“It follows, as a necessary deduction from the established rule, that a broker is never entitled to commissions for unsuccessful efforts. The risk of failure is wholly his. The reward comes only with his success. That is the plain contract and contemplation of the parties. The broker may devote his time and labor, and expend his money with ever so much of devotion to the interest of his employer, and yet if he fails, if without effecting an agreement or accomplishing a bargain, he abandons the effort, or his authority is fairly and in good faith terminated, he gains no right to commissions. He loses the labor and effort which was staked upon success. * * * He may have introduced to each other parties who otherwise would have never met; he may have created impressions which, under later and more favorable circumstances, naturally lead to and materially assist in the consummation of a sale; he may have planted the very seeds from which others reap the harvest; but all that gives him no claim. It was part of his risk that failing himself, not successful in fulfilling his obligation, others might be left to some extent to avail themselves of the fruit of his labors. As was said in Wylie v. Marine Nat. Bank [1875], 61 N. Y. 415, in such a ease the principal violates no right of the broker by selling to the first party who offers the price asked, and it matters not the sale is to the very party with whom the broker had been negotiating. He failed to find or pro
“It is now a well settled doctrine, that in the absence of any usage, or contract expressed or implied, or conduct of the seller preventing a completion of the bargain by the broker, an action by the broker for his commissions will not lie until it is shown that he has effected or procured a sale of the property. It is not enough that the broker has devoted his time, labor or money to the interests of his employer. Unsuccessful efforts, however meritorious, afford no ground of action. Where his acts effect no agreement or contract between his employer .and the purchaser, the loss must be his own. He loses his labor and effort which he staked upon success. If no contract, then no reward. His commissions are based upon the contract of sale. ’ ’ Garcelon
We conclude that under the option involved in this case there can be no recovery for services or commissions. The sole ground upon which appellants could recover compensation is upon the theory said option was revoked in bad faith, and as a mere device to defeat their interest in a sale about to be consummated, which theory they failed to establish.
Note.-—Reported in 101 N. E. 96. See, also, under (1) 38 Cyc. 1990; (2) 8 Cyc. 360; (3) 19 Cyc. 246; (4) 19 Cyc. 221, 260; (5) 19 Cyc. 194, 254; (6) 39 Cyc. 1236; (7) 19 Cyc. 254; (8) 19 Cyc. 279; (9) 2 Cyc. 1014; 3 Cyc. 388. As to what services are sufficient to entitle real estate broker to commissions on sales, see 139 Am. St. 246 ; 28 Am. St. 546; 12 Am. St. 589. As to the right of a real estate broker to a commission on a sale made by the owner, see 9 Ann. Cas. 433. As to when a real estate broker is considered as procuring cause of sale or exchange, see 44 L. R. A. 321. On the question of the performance of a contract by a real estate broker to find a purchaser or effect an exchange of his principal’s property, see 44 L. R. A. 593. On the broker’s right to commissions on sale by owner after stipulated time of agency to customer introduced by broker within the time limited, see 21 L. R. A. (N. S.) 328.