186 Mich. 269 | Mich. | 1916
Defendants authorized the plaintiff to sell a certain piece of land by the execution of the following written contract:
“Detroit, Mich., Feb. 28, 1911.
“I hereby authorize Samuel Crawford, Jr., of the city of Detroit, Wayne county, Michigan, an option on the following described property for one year from the date thereof. Expires February 23, 1912.
“Property described as follows, to wit:
“As lot numbered No. 9 (nine), being on the north side of Jefferson Ave., formerly River St. being 487 50/100 feet on said road, 166 feet on Rouge river also being 232 14/100 feet on the westerly boundary line of lot numbered five (5), containing about 2 acres more or less according to Cicottes subdivision of P. C. 588 according to a recorded plat thereof, recorded May 15, 1889, Liber 12, page 86, of Plats.
“The above option is given for the consideration of*271 $5.00, 5% for sale of same and sale must net $10,000.00.
“Edward A. Cicotte. [L. S.]
“Eliza E. Cicotte. [L. S.] ”
Later, and before the expiration of the year mentioned in the contract, defendants themselves secured a purchaser for said land for the sum of $15,000. After said sale was consummated and the parties having failed to reach a settlement of their differences, the plaintiff brought suit before the expiration of the year. Upon the trial plaintiff gave evidence tending to show that he had advertised said property to some extent and had shown it to a great many prospective buyers. Up to the’ time of the sale, however, he had secured no purchaser for the land at or above the price named in the contract. Upon learning of the sale, he discontinued his efforts to himself make a sale of the property, and this action followed. The trial resulted in a judgment for the defendants upon a verdict directed by the court.
The only meritorious question raised upon the record is whether a verdict was properly directed’ for the defendants. It is the claim of the appellant that by selling the property within the year during which he had an exclusive' right to the sale, the defendants breached the contract, and of this there can be no doubt. It is further the claim of appellant that in this action he is entitled to recover by way of damages the profits which he would have made had he made a sale within the time limited by the contract. His counsel says:
“It has been frequently held by the courts that when a breach of contract results in the loss of profits to the plaintiff, and the contract is one in which a profit accruing to the plaintiff is so contemplated, the amount of such profit is recoverable” (citing Burrell v. Salt Co., 14 Mich. 34; Atkinson v. Morse, 63 Mich. 276 [29 N. W. 711]; and Fell v. Newberry, 106 Mich. 542 [64 N. W. 474]).
The case of Axe v. Tolbert, 179 Mich. 556 (146 N. W. 418), cited and relied upon by plaintiff, is not applicable to the facts here under consideration. There the contract provided for certain compensation to be paid to the plaintiff agent in case the sale was made by the principal. We there said:
“A broker may be entitled to a commission on a sale made by the owner without the broker’s co-operation, if they see fit to so provide in the contract of agencySuch contracts are not to be confused with the ordinary and general contract of brokerage, where compensation is entirely contingent on the broker finding and producing a purchaser.”
Had the plaintiff produced a customer able and willing to buy under the terms fixed in the contract, prior to the date of the sale effected by defendants, he would have been entitled to recover under our holding in the case of Wright v. Beach, 82 Mich. 469 (46 N. W. 678). So far as this record discloses, the breach of the contract on the part of the defendants was, as to the plaintiff, damnum absque injuria. There is no intelligent basis upon which the jury could be instructed to measure the damages suffered by the plaintiff by reason of said breach.
I am not able to distinguish this case and Davis-Fisher Co. v. Hall, 182 Mich. 574 (148 N. W. 713, L. R. A. 1915A, 1224), in principle.
