109 Wash. 447 | Wash. | 1920
Respondent, as successor in business to Templeman & Brownell, sued to recover a brokerage commission.
The complaint alleged the employment, on October 24, 1918, by appellant as sole and exclusive agent to sell an apartment house, the furniture and furnishings and the leasehold interest of the premises known as the Yan Siclen Apartments. It was alleged that respondent produced a purchaser ready, able and willing to buy at the agreed price, and that respondent was agreed to have a commission of five per cent of the
Respondent proved, and appellant at the trial admitted, the following written memorandum of agreement :
“Seattle, Wn. 10-24 1918
“For and in consideration of the sum of One Dollar, receipt,of which is hereby acknowledged, I hereby appoint Templeman & Brownell of 526-527 Green Building, Seattle, Washington, sole agents for the sale of my apartment house furniture and furnishings and leasehold with leasehold interest, located 1214 8th Ave., Seattle, Wn. and agree,to pay them 5% as remuneration for their services if sold for $13,000 or any price that I may accept.
“This contract to continue in force for thirty days and thereafter until sold, unless revoked by a written notice at the expiration of the thirty days. ' ,
“Witness: D. C. Brownell. . Owner Hanson”
The case made by respondent, however, was not as alleged in the complaint, but was substantially as follows: ' ' ’
What appellant had to sell was the apartment house lease and the furniture and furnishings contained in the apartment house, which consisted of a seven-story building of one hundred and fifty-four rooms, or sixty-three apartments. Respondent procured a purchaser named Cronander, on October 24, 1918, who agreed to pay the sum of $12,500 for the apartment house and leasehold, upon terms, $8,000 cash and the balance in monthly payments, which price and terms were acceptable to appellant. The sale, however, was conditional upon the condition that the lease of appellant, which had nearly two years to run from the date of the agreement, with privilege of renewal, be renewed for two years more at least, at the same rent of $775 per month, and also upon the condition that the buyer,
The parties were unable to procure the written consent of the owner of the premises, Hutchinson, to the transfer of the lease or to the extension for two years. There was a condition in the lease, which was offered by appellant and rejected by the court, but which we have before us, against transfer of the lease by appellant without the written consent of the landlord, and there was also a provision that the lessees named therein, Hanson and wife, should have an option to extend the lease for a period of two years after its expiration, namely, after June 30, 1920, at a rental then agreed upon. Upon the failure to obtain the consent of Hutchinson, the landlord, to the transfer of the lease and the extension thereof to respondent’s purchaser, the money he had paid down, $500, was returned to him and the sale fell through. Thereafter appellant procured another broker, who, through its active agent, Antill, sold the apartment house furniture and furnishings and the leasehold interest to a corporation in no way connected with either of these parties, for the sum of $10,000, and the written consent of the landlord for the transfer of the lease to it and the extension of its term for two years was pro
Appellant seeks reversal of the judgment upon the ground that, as he contends, the principal is not bound to pay a broker’s commission for a service rendered when the principal’s title failed and the possibility of failure, together with all the facts and circumstances relating to the condition of the title, was made known to the broker at the time the commission contract was entered into between him and his principal.
In support of this contention, appellant offered to prove that, before the written agreement was entered into between respondent and appellant, the terms and conditions of the lease under which appellant held the Van Siclen Apartments and the necessity of procuring the written consent of the landlord to any transfer
“If respondent had such an exclusive contract, and if, during this period from October 24, 1918, to January 18, 1919, appellant Hanson was personally prohibited from selling the property to a third person, under penalty of paying respondent’s commission, then the lower court was right in concluding that appellant was liable for the commission, providing this proposition of law is not overturned by superior and Mgher considerations of law, namely, that, where the broker knows of all defects in his principal’s title and enters into the contract of brokerage, he cannot recover unless he meets the conditions or the conditions are removed, and if the principal fails to remove the conditions and fails to cure the defects in title which existed at the time the brokerage contract was entered into, and the deal falls through without any fault on the part of the principal, the principal is not liable.”
This, however, incorrectly reverses the major and minor propositions of law. If the broker knew of the defects in his principal’s title and entered into the contract of brokerage he could not recover, of course, unless he met the conditions or the conditions were removed. Seattle Land Co. v. Day, 2 Wash. 451, 27 Pac. 74. In other words, he takes the contract to procure a purchaser who is ready, willing and able to buy what the broker’s principal has to sell, and if the broker knows that the principal has a title which the purchaser will not accept, then he has not produced a purchaser in accordance with the terms of his agreement. Merritt v. Lillyblade, 57 Wash. 159, 106 Pac. 621. On the other hand, here we have a special contract which
The general rule as to such a contract is:
“A real estate broker who is given an exclusive agency for the sale of property is entitled to a commission on any sale thereof made by the principal either independently or through the efforts of another broker within the time specified in the contract of employment, although the exclusive agent’s efforts did not contribute toward the sale. ’ ’ 19 Cyc. 264.
We would be inclined to hold, in accordance with the minority of the courts, that a contract giving the broker exclusive authority to find a purchaser for property, but not negativing the right of the principal to sell the property himself, is not violated by a sale by the principal, and in the event of such a sale, the agent is not entitled to a commission. Ingold v. Symonds, 125 Iowa 82, 99 N. W. 713; Waterman v. Boltinghouse, 82 Cal. 659. But here the case is that, before any notice of revocation had been given by the principal to respondent as his broker, appellant made or authorized the employment of another broker to procure the sale, and the sale was procured on the condition which was not met with the purchaser procured by the first broker. While we might not hold that appellant was personally prohibited from independently selling the property to a third person, we are certainly obliged to hold that he was prohibited from giving the property to another agent to sell when he had an exclusive agent in respondent.
Appellant also contends that the provision that the agency should continue in force after the thirty days until the property was sold, unless revoked by written notice at the expiration of thirty days, in effect consti
Judgment affirmed.
Main, Mackintosh, Parker, and Mitchell, JJ., concur.