115 Va. 711 | Va. | 1914
delivered the opinion of the court.
This is an action of assumpsit brought by John W. Bates, the plaintiff, a real estate agent, to recover commissions from Dr. James Cannon for services rendered in the sale of a lot lying in the city of Bichmond. There was a verdict and judgment in favor of the plaintiff and to that judgment this writ of error was awarded.
It appears from the evidence, in which there is little conflict, that on October 18, 1910, the plaintiff wrote to the defendant that he had a party who was anxious to buy a lot on the thoroughfare upon Avhich the defendant’s property was situated, and requested the defendant to advise Mm what was the lowest price he would take for the lot, and asked an early reply. On the next day the defendant, who after receiving the letter had come to Bichmond, ’phoned the plaintiff’s place of business that he would sell the lot at the price of $160 per front foot, but that he would not give Mm an exclusive agency to sell the property at that or any other price as the property was already in thv hands of Elam & Funsten (real estate agents) for sale. On the 20th of that month the plaintiff offered the lot to Henry W. Wood at the price named ($160 p'er front foot). Wood made an offer in writing of $150 per front foot. This offer was taken to the defendant by-the plaintiff, who urged or advised its acceptance. The defendant declined to accept the offer. It was then agreed betAveen the plaintiff and defendant that th'e defendant would see Mr. Elam of the firm of Elam & Funsten (through whom the prop
Mr. Elam testified that after effecting the sale he met the plaintiff, who said to him that he understood his firm had sold the property and asked the price obtained. When told, he expressed surprise, as he had learned that Mr. Wood had advanced his offer to $160 and he supposed he had purchased at that price. The plaintiff then wrote the following letter to Dr. Cannon:
“Dear Sir:
“I see that a deed from you to Mr. H. W. Wood has passed, conveying the property at the northeast corner of Monument Ave. and Mulberry St., at the price of $15,703.13.
“I introduced Mr. Wood to this property and, as you are aware, negotiated with him for its purchase and I expect you to recognize my agency for this sale. My commissions are the usual ones charged, namely: 3 per cent, on the first $5,000.00, 2y2 per cent, on the next $10,000.00 and 2 per cent, on the balance, making a total of $414.06 which I will thank you to remit at your earliest convenience.
“Yours very respectfully,”
To this letter Dr. Cannon replied as follows:
*715 “Dear Sir:
“Your note received and in reply will say that I am much surprised at your letter. You did introduce Mr. Wood to this property, but you did not get an offer for the property that I would accept. When you made your offer of one hundred and sixty dollars ($160.00) I rejected it. Mr. Wood then took up the matter on his own motion with Elam & Funsten, stating to them that he thought perhaps they had some property to sell on Monument Avenue, and they told him they had and mentioned my property at once, and talked with me, and I told them that I would sell it for one hundred and seventy-five dollars ($175) for the corner, one hundred and seventy dollars for the entire frontage. They saw Mr. Wood and he was not willing to give that much, and I finally agreed to take one hundred and sixty-seven dollars and fifty cents ($167.50), and they sold the property at that price.
“I did not recognize anybody in the transaction except the parties who sold the property and Mr. Wood. I had a right to refuse to sell my property at the price you offered, and 'exercised that right, and I had a right to accept the price offered me by Elam & Funsten, and I exercised that right. If you desire to discuss the matter with those gentlemen, that is with you and not with me, but it is rather amazing to me that you should think for one moment that I am under obligation to you when you could not get the price for the property I demanded.
“Begretting that you should have any such feeling about it, I am
“Sincerely yours,”
The errors assigned are to the action of the court in giving and refusing instructions, and in refusing to set aside the verdict of the jury as contrary to the law and the evidence.
The plaintiff’s instruction as amended was as follows: “The court instructs the jury that if they believe from the evidence that the defendant authorized the plaintiff to sell his property at the northeast corner of Monument Avenue and Mulberry Street at one hundred and seventy ($170) dollars a front foot, and that the plaintiff, acting on said authority, interested Mr. H. W. Wood in said property as a prospective purchaser and gave his name to the defendant as a prospective' purchaser, and that thereafter the defendant, either personally or through agents, negotiated for the sale of said property with said Wood and after-wards, Avhile authority to plaintiff avus unrevoked, sold said property to said Wood for one hundred and sixty-seven and one-half dollars ($167.50) a front foot, and that the services of the plaintiff in interesting said Wood in said property procured the subsequent sale Avhich Avas made, then the plaintiff Avas the procuring cause of said sale, and they should find for the plaintiff and award him such compensation for his services as they believe reasonable, fair and just under all the facts and circumstances of the case.
“If the jury do not believe from the evidence that the services of the plaintiff brought about on procured the sale which was made, then they should find for the defendant.”
The defendant’s instruction No. 3, rejected by the court, told the jury that, “if they believe from the evidence that the defendant had placed his property in the hands of several real estate agents to sell, and that the plaintiff and Elam & Funsten were among that number, then the agent who procured a purchaser ready and willing to complete the purchase upon terms satisfactory and agreed to by the defendant is entitled to commissions on the sale, to
These two instructions substantially present the contentions of the plaintiff and defendant as to the proper rule or principle of law by which the right of th'e plaintiff to the commissions sued for was to be determined. Whether or not the court erred in giving the one and refusing the other depends upon the question whether or not the same rule of law is applicable to a case like this, where two or more real estate brokers are authorized to make sale, each knowing of the other’s employment, and a case in which there is only one broker, or if more than one they do not know of the employment of each other.
If only one real estate broker is employed, it is settled in this State, and generally it is believed, that where such broker contracts to furnish a purchaser of the land at a stipulated price, whom the owner accepts, and in the negotiation the owner agrees upon and accepts a different price from that at which the agent was instructed to sell, such agent is entitled to the commissions. Paschall & Gresham v. Gilliss, 113 Va. 643, 75 S. E. 220; 2 Clark & Skyles on Law of Agency, p. 1682.
It also seems to be the general rule that where two or more brokers are authorized to make sale of land, but are ignorant of each other’s employment, that the broker who was the procuring cause of the sale is entitled to the commissions. Where such broker is the efficient cause of the sale, the fact that another broker, or the owner of the land himself, takes the matter in hand and completes the sale does not affect the right of such broker to the commissions.
While the cases are not in accord, the better rule seems to be that where two or more brokers are employed and they know of each other’s employment, and one of them is not more favored than another by the principal, he may sell to the purchaser who is first produced, and th'e broker producing such purchaser is entitled to the commissions. 2 Clark & Skyles on Agency, p. 1683; 19 Cyc. 260; and Chaffie v. Woodren, 48 Col. 34, 108 Pac. 995, 139 Am. St. 220, and cases cited in notes to each.
In the case of Vreeland v. Vreeland, 33 N. J. 247 (a leading case) the reasons for this rule are stated very clearly by Chief Justice Beasley. Where the brokers know of each other’s employment he says, “each is aware that he is subject to the arts and chances of competition. If h'e finds a person who is likely to buy and quits him without having effected a sale, he is aware that he runs th’e risk of such person falling under the influence of his competitor— and in such case he may lose his labor. This is a part of the inevitable risk of the business he has undertaken. On the other hand, if fortune should be propitious, a bidder for the property on sale, who has been selected by his rival, may come to him and by his means effect the bargain. Now in the competition the vendor of the property is to remain neutral; he is interested only in the result. But when either of the agents thus employed brings a purchaser to
In Francis v. Eddy, 49 Minn. 447, 449, 52 N. W. 42, 44, Judge Mitchell, in speaking for the court, said, in a case very much like the case under consideration: “The plaintiff knew that the property was also listed with another broker and hence that h’e was subject to the chances of competition, and that if he entered into negotiations with a prospective customer and before any sale was effected the party went to the competitor, or fell under his influence, he was liable to lose his labor. This was one of the inevitabe risks
In Edwards v. Pike, 49 Tex. Ct. App. 30, 107 S. W. 586, the owner of land employed two brokers to sell the same, each having knowledge of the other’s employment. One of them secured a prospective purchaser, upon terms agreed to by the owner, but before any agreement with such purchaser was reduced to writing so as to bind the purchaser, the other broker consummated the sale to that person under terms which though more favorable to the purchaser, were satisfactory to the owner. R eld, that the owner was liable for commissions only to the broker who actually consummated the sale. The court said in that case, that “In the absence of special circumstances which would make it proper to so charge him, the owner ought not to be held liable for commissions to more than one broker, and after actually selling his property to a purchaser produced by one broker on terms negotiated by such broker and not by another, he ought not, before paying him the commissions as suggested by the charges refused, at his peril, to determine whether some other broker was not in fact the procuring cause of the sale. In such a case the risk of finally
Again, the court said: “The broker who undertakes a sale of property with full knowledge that another broker has also undertaken to sell, ought to expect no more of the owner than that he will not interfere in favor of the one or the other.”
In Higgins v. Miller, 109 Ky. 209, 58 S. W. 580, it was held that when property has been listed for sale with different real estate agents, the agent who induces the seller and the purchaser to enter into the contract is entitled to the commissions, though another agent may have first brought the parties together, and when the property is with the plaintiff’s knowledge in the hands of several agents, the rule of non-interference applies only to the owner, and the agent who first actually sells the property is entitled to the commission.
In Glascock v. Vanfelt, 100 Tenn. 603, 46 S. W. 449, it was said that “when a principal employs more than one broker, and the several brokers act independently and with knowledge of this fact, the one who first completes a sale is entitled to the commissions.”
In Ward v. Fletcher, 124 Mass. 224, it was said by O. J. Gray (afterwards Mr. Justice Gray) in a case wh’ere the plaintiff did not have the exclusive right to sell: “One broker who is unsuccessful in effecting a sale does not become entitled to commissions upon the success of another.”
In Nation v. Harness, 33 Okla. 630, 126 Pac. 799, it was held that when property has been listed for sale with different real estate agents the agent who induces the seller and purchaser to enter into the contract is entitled to the commissions, although another agent may have first brought the parties together.
It follows from what has been said that we are of opinion that the instruction “b” given by the court did not state the law applicable to the facts of this case, and that the defendant’s instruction No. 3 did, and that the trial court erred in giving the one and in refusing to give the other.
Without discussing the other errors assigned, the court is of opinion that the judgment complained of must be reversed, the verdict of the jury set aside, and the cause remanded for a new trial, to be had not in conflict with the views expressed in this opinion.
Reversed.