110 So. 621 | La. | 1926
The defendants owned a tract of 7,800 acres of land in Concordia parish, of which 2,000 acres were cleared and under cultivation and 5,800 acres were timbered.
On February 6, 1924, they placed said lands in the hands of plaintiffs for sale for a price of not less than $420,000 net to defendants. The written agreement contained this clause:
"This agreement to remain in effect until April 1, 1924, and if at the end of that time you (plaintiffs) have a good prospective buyer, we (defendants) will extend the time thirty days longer. If we should sell said property, or any part thereof, after the expiration of this agreement, to a buyer with whom you had been negotiating prior to the expiration of this agreement, we will see that you are paid a commission of five per cent. of the sale price."
Morgan informed plaintiffs at once of two things: (1) That the interests with which he was then connected were financially unable to handle the deal and were therefore not interested at all; and (2) that, he himself was not interested at all in the 2,000 acres of cleared and cultivated lands, but that, if he were able to make other financial arrangements (as he thought he could), he might be interested in the timbered lands, and, upon being asked what he would be willing to give for them, stated that he might be willing to pay $325,000 for the 5,800 acres of timbered lands if his own idea of the amount of timber thereon should prove correct. That was all.
As this net price was $25,000 above the suggestion (or call ittentative offer) made by Morgan, even without taking into consideration the commission which plaintiffs had to get out of the purchaser, it is clear that the proposition could not have been an attractive one to plaintiffs. And accordingly plaintiffs seem to have taken no further interest in that phase of the matter prior to April 1, 1924. *381
"If we (defendants) should sell said property, or any part thereof, after the expiration of this agreement, to a buyer with whom you (plaintiffs) have been negotiating prior to the expiration of this agreement, we will see that you are paid a commission of five per cent. of the sale price."
Now that clause is susceptible of but two interpretations: (1) Taken alone, it may mean that, if plaintiffs should have, at any time before the expiration of the contract started negotiations with any person by even so much as offering the property to him, then defendants were to be debarred forever thereafter from selling their property to such person without paying over to plaintiffs 5 per cent. of the price received; or (2) taken in connection with the clause which immediately precedes it, it may mean that, if plaintiffs by their efforts had succeeded in so far interesting some person in the property, that at the expiration of the contract he might be considered a likely buyer, then defendants should still pay the commission on any sale made to him, even though not consummated in the thirty days' extension provided for in the contract.
But the first interpretation is clearly not admissible. For a contract must represent the will of both parties; and it is inconceivable that any sane person would bind himself in that manner. So that defendants clearly had no intention to bind themselves to that extent. And we do not understand that plaintiffs so contend.
On the other hand, the alternative interpretation is a reasonable and fair one, and hence must be considered as the common intent of the parties. The more so as it is in strict accord with law, even independent of *383
contract. For this court has always consistently held that a broker who was the procuring cause of a sale would be protected as to his commission against any fraudulent or unfair attempt on the part of his principal to deprive him thereof. Grace Realty Co. v. Peytavin Planting Co.,
But we do not think that the evidence supports that aspect of the case.
Mr. Morgan was well acquainted with the lands long before plaintiffs became connected with them. In the course of five or six years before that, he had twice sought to buy the lands, but they were not for sale. On both occasions he had employed Mounger to purchase the lands if possible; and so when Mounger, after the lands were put in his hands for sale, sought out Morgan as a possible purchaser, he was not using any information coming from plaintiffs or profiting by any efforts of plaintiffs to interest Morgan in the purchase, but was proceeding entirely on his own information and knowledge.
For the rest, on April 4th, Morgan wrote his cruiser, G.W. Calhoun:
"I do not believe that it is worth while for us to cruise the Hornshy timber just now [i.e. the defendants' timber], but if there are later developments on this or other adjacent timber I will advise you promptly."
So that on April 4th — i.e. three days after the expiration of the original contract — Morgan was not then negotiating for the lands. But he must have taken up this matter shortly afterwards; for his cruiser was sent on the land about April 8th and finished about April 26th, making his report to Morgan about May 1st. Hence it was not until 30 days after April 1st that Morgan was even in a position to make an intelligent offer for the property. And the testimony of plaintiffs, is that it was only after this timber cruise that Morgan made any serious offer for this timber; and the offer which he did make was only $325,000, which amount defendants were at all times unwilling to accept, and which offer was never at any time even communicated to them. And Morgan's testimony is:
"Q. What, if anything, was said or done by Mr. Thomas or Mr. Bullis to quicken or increase *385 your interest in this property? A. Very little, if anything. * * *
"Q. Did either Thomas or Bullis, after you received the report of the cruiser, make you any offer for the purchase or sale of the timber prior to May 12th? A. Mr. Thomas told me that $325,000 would not get it, and wanted me to increase my offer. Outside of that there was no discussion of price. * * *
"Q. Did he ever make you a price? A. No, sir."
Hence our conclusion is: (1) That plaintiffs were not the first to interest Morgan in the lands which they had for sale; and (2) that plaintiffs were not negotiating with Morgan during the term of the contract (or even during the alleged extension thereof) in such manner as to interest him as a likely purchaser thereof, or beyond the mere fact of advising him that the land was for sale but could not be purchased for the price which he seemed willing to give for it.
It is our opinion that, when the contract was made, defendants had not in contemplation the payment of a commission for services no more valuable to them than the above.
Accordingly we see no merit in the claim now advanced; and the trial judge was correct in rejecting it.