206 Ky. 686 | Ky. Ct. App. | 1925
Reversing.
Appellant Clarke is and was a. real estate broker with offices in Lexington. The appellee, People’s Roller Mills Company, is and was a corporation doing a flouring business in Scott county. W. H. Gatewood was its president and general manager. He sold the property of the milling company to Williams and Moore at the price of $15,000.00 cash, and this suit by Clarke against the Roller Mills Company and Gatewood was instituted in the Scott circuit court to recover of them three (3%) per cent commission as real estate broker on the amount of the sale price, Clarke claiming that he was employed by the milling company to find a purchaser, for the milling property and the inducing cause which brought the seller and buyer together and caused the sale. A jury trial resulted in a verdict for the defendant milling company, and Clarke, broker, appeals, insisting (1)' that the court should have peremptorily directed the jury to find and return a verdict for him; and (2) that the instructions given 'by the court were prejudicially, erroneous, and he prayed an appeal be granted and the judgment reversed. The amount involved is only $450.00, but as we have decided the judgment must be reversed, the appeal is granted.
In the course of the prosecution of his regular business as real estate broker Clarke was approached in Lexington by one Grace in March, 1922, and asked to get the milling company to make a price on its property, saying in substance that he and one Williams desired to purchase it if it could be had at a reasonable price. Thereupon Clarke, the broker, wrote W. H. Gatewood, president of the milling company, at Georgetown, the following letter:
“Dear Sir:
“I understand that you are the owner of a mill located on the waters of Elkhorn creek, in Scott county.
“Would you be interested in mailing a price on this property? If- so please give the terms and your best price, as I have a buyer who wants such a property.
“I wish that you would let me know your decision in the matter at once.
“Yours truly,
“L. J. Clarke.”
“Dear Sir:
“In reply to yonr letter of Mch. 4/22 in regard to price and sale of People’s Roller Mills Co., beg to advise that the mill can be bought if price is satisfactory. I will sell the property including everything except the accounts and cash on hand and wheat on hand for the sum of $20,000.00 cash, provided your commission is not too much. This price includes:
2 dwelling houses and all outbuildings,
Mill property and equipment,
All flour sacks and wheat bags,
1 Republic truck,
1 Ford truck,
1 Ford coupe,
1 Cleveland roadster.
All this property is in good shape.
“Very respt.,
“Peoples Roller Mills Co., By W. H. Gatewood, Pres.”
In answer to Gatewood’s letter, Clarke, on March 11th, wrote:
“Dear Sir:
Re: Mill proposition.
“Your letter received, and have had talk with my clients, who wish to have a talk with you. We will be at your place at ten o’clock Tuesday morning.
“The buyers are interested, and want to see the mill and other equipment. We are coming prepared to do business. You asked about the commission, and I am sure it will not break you as it is only 3%. “Very respectfully,
“ L. J. Clarke, 125 East Main St.”
However, after writing the first letter 'Clarke drove down to the mill to see Mr. Gatewood. At that time Gate-wood had not received the letter but informed Clarke that he would make him a price on the property as soon as Clarke’s letter was received and Gatewood had time to think it over. As soon as Clarke received the letter from
On the other hand, appellee milling company and Gatewood insist that they are not liable for the commission because, as they contend., Clarke was not the procuring cause of the sale. In support of this contention Gatewood testified, as did Williams also, that about a month or so before Clarke wrote his first letter to Gate-wood asking the price on the milling company property,
The question is, did Clarke, as broker, find and present Williams the purchaser, or did the sale come about through the casual meeting of Williams and Gatewood at the mill? In addition to the admitted facts which we have recited above, it is certain from the record that Gatewood, during the negotiations, regarded Clarke as having found and presented Williams as prospective purchaser. Gatewood admits that when there was a halt in the negotiations he solicited Clarke to hurry-the purchasers. The mere fact that Clarke did not conduct the negotiations is immaterial. If he brought the seller and buyer together and started the negotiations he earned his commission. Tile milling company engaged Clarke to do this on a three per cent (3%) basis, and he presented Grace to Gatewood, and Grace brought in his associate, Williams, who later found Moore, and thus consummated the deal.
As we view the facts there was nothing to submit to the jury. The milling company admits it accepted the services of Clarke as a broker, and that it has not paid him his commission. The trial court should, therefore, have sustained appellant Clarke’s motion at the conclusion of the evidence for a directed verdict in his favor. In overruling that motion reversible error was committed. On another trial if the evidence is in substance
Judgment reversed for proceedings consistent here-' with.