295 P. 441 | Nev. | 1931
The issues presented by the pleadings required the plaintiff to establish prima facie: First, the contract of employment; second, performance by the plaintiff, or an excuse for nonperformance.
From the letters and telegrams in evidence it appears that defendant's land was listed with plaintiff for sale or option for sale, and without limitation as to time. The contract of employment is therefore fully established.
After a counter-proposition, which was rejected, plaintiff made further negotiations pursuant to the terms of the original contract of employment and found a purchaser who paid to plaintiff $1,000 on account of the option and the purchase price. The purchaser was able, ready and willing to buy. But thereafter, and before the expiration of the thirty day period limited for the option, when the first payment on the purchase price *157 would become due and payable, the defendant wrongfully withdrew his authorization to sell, thereby defeating the consummation of the purchase.
"To avoid liability for commission, the principal must notify the broker of the revocation before performance by the latter of the contract of agency, and the principal in revoking the agency must act in good faith * * *. If, for example, he terminates the agency after the broker has found a person ready, willing and able to buy * * * the broker is entitled to compensation." 9 C.J. pp. 563, 564, n. 45-47.
The contract in the case at bar did not empower nor obligate the plaintiff to complete a sale, or to enter into a contract of sale binding on the defendant, but empowered and obligated her merely to find a purchaser, and when that was done, her performance was complete. 9 C.J. pp. 626-628, n. 52-55; p. 591, n. 19; p. 596, n. 33; pp. 609, 610, n. 96-98.
"The authorities are practically unanimous in holding that unless the broker and his employer have expressly stipulated to the contrary, the broker is entitled to his compensation upon the completion of the negotiations he undertook irrespective of whether or not the contract negotiated is ever actually consummated." 4 R.C.L. p. 310, "Brokers," sec. 50, n. 5. The trial court was called on to determine from the evidence whether or not the plaintiff had produced a prospective vendee or a prospective optionee, and correctly determined that it was the latter. Plaintiff by her own testimony is committed to the proposition that her client was only ready, able, and willing to take an option.
It is a fundamental rule of law that a real estate broker authorized to find a purchaser for a parcel of real property has not earned his commission by producing a person who desires to take an option upon the property. 9 C.J. 604; Dinkelspiel v. Nason,
In the present case there was an entire absence of any option agreement as such, and in this respect the case is weaker than any of the above-cited cases. The record conclusively determines that as a matter of fact plaintiff in this case did no more than to attempt to procure a person who was willing to enter into an option agreement with the defendant.
The appellant, Martha S. Crump, designated the plaintiff, was, at the time mentioned in her complaint, a licensed real estate agent doing business at Las Vegas in Clark County, Nevada. The respondent, L.L. Brentner, designated the defendant, at the time mentioned in the complaint, was a resident of Carpinteria, Cal., and owner of 480 acres of land situate at or near Las Vegas.
The complaint alleges that on the 26th day of December, 1928, the plaintiff entered into the services of the defendant at his request, as agent to sell and dispose of certain land situate in Clark County, Nevada, described in the complaint by its legal subdivisions; that plaintiff negotiated the sale of said land upon the terms and conditions and at the time agreed upon and suggested by the defendant; that the purchaser procured was *159 then and there able, ready, and willing to complete the purchase upon the terms and conditions fixed and agreed upon; that the plaintiff duly performed all the conditions on her part to be performed, and that by the terms of said contract the defendant agreed to pay the plaintiff for said services the sum of $3,000; that said sum had not been paid, nor any part thereof; and that there is now due the plaintiff by the defendant therefor the sum of $3,000, with interest at 7 per cent per annum, from said 26th day of December, 1928. Wherefore, the plaintiff demanded judgment for said sum and for such other and further relief as the court may deem just and proper.
In support of the allegation contained in the complaint respecting the plaintiff's alleged employment to sell the land in question, the plaintiff, as a witness in her own behalf, adduced in evidence the following telegrams:
"Las Vegas Nev Dec 26 1928
"L L Brentner Carpinteria Cal
"Wire price and terms acreage and price thirty days option
"Martha S Crump"
"Santa Barbara Cal Dec 26 1928
"Mrs. Martha Crump Las Vegas Nev
"Will accept one hundred eight thousand for my four hundred eighty acres terms one third cash balance one and two years seven percent on deferred payment five percent commission one thousand for thirty day option otherwise will do my own subdividing.
"L L Brentner"
In support of the allegations contained in her complaint to the effect that the plaintiff procured a purchaser ready, able, and willing to complete the purchase of the land upon the terms and conditions fixed and agreed upon, the plaintiff testified in substance that on December 31, 1928, she telegraphed the defendant as follows:
"Las Vegas Nev Dec 31 1928
"L L Brentner Carpinteria Cal
"Parties here accept proposition on your four hundred *160 eighty acres as per your telegram to me of December 26 stop Meet me Trinity Hotel Los Angeles eleven A M Friday January four to go to office for closure stop Wire acceptance and approval of time and place of meeting
"Martha S Crump"
On January 1, 1929, plaintiff telegraphed the defendant as follows:
"Las Vegas Nev Jan 1 1929
"L L Brentner Carpinteria Cal
"Why no answer to my wire December thirty-first I have one thousand dollars deposit in accordance with your wire of December twenty-sixth Please answer immediately
"Martha S Crump"
On January 2, 1929, the defendant telegraphed the plaintiff as follows:
"Santa Barbara Cal Jan 2 1929
"Mrs. Martha Crump Las Vegas Nev
"Offer and authorization to sell my property is withdrawn
"L L Brentner"
The plaintiff, on her examination in chief, testified in substance as follows: That on December 31, 1928, she procured a purchaser for the land in question for the price and upon the terms stated in the defendant's telegram of December 26, 1928, in the person of one A.B. Witcher, who, on or about January 1, 1929, deposited with her $1,000 for an option to purchase the land upon the terms stated in said telegram, and that A.B. Witcher was then and there able, ready, and willing to complete the purchase of the land upon the terms stated in said telegram of December 26, 1928. On her cross-examination the plaintiff was asked:
"Q. Now, if it is true, Mrs. Crump, as you have testified to, that Mr. Witcher accepted Mr. Brentner's terms in his telegram of the 26th, on the 30th of December, 1928, why did you not procure a deposit in the sum of $36,000.00, as an initial payment, instead of the sum of $1,000.00? A. According to the usual real estate *161 transactions, Mr. Witcher was purchasing the option and he had thirty days to pay the additional $35,000.00.
"Q. Then you were not, at that time, attempting to secure a down cash payment of $36,000.00 from Mr. Witcher? A. Not at that time."
On redirect examination, the plaintiff was asked:
"Q. You were asked a question on cross-examination this morning, why you didn't ask for the balance of $35,000.00 payment — why didn't you? A. Mr. Witcher was to pay the balance of the down payment, which was to be $36,000.00, $1,000.00 down and the balance of $35,000.00 to be paid within thirty days."
A.B. Witcher, a witness for the plaintiff, testified, in substance, as follows: That on December 31, 1928, Mrs. Crump displayed a letter and telegram which convinced him that she had authority to offer him the Brentner tract on certain terms and conditions; that he accepted the offer and agreed to take the tract on the terms and conditions stated; and that on the next day he paid the plaintiff $1,000. The witness was asked:
"Q. I will ask you, if within thirty days after you paid her the $1,000.00, if you were ready, able and willing to pay $35,000.00 as the first payment? A. Yes sir."
The witness further testified that according to his agreement with the plaintiff, he paid $1,000 cash and within 30 days he was to pay $35,000. He testified that he was ready, able, and willing at that time to pay the $36,000 which would be due under the contract. The witness was examined at length as to his financial ability to complete the purchase. He testified that a conservative estimate of his net worth was $20,000, and that his wife was a partner in the deal, and that she was worth approximately $100,000. We note that all of the testimony of Mr. Witcher as to his ability to complete the purchase, both on direct and cross-examination, went in over the objections of counsel for the defendant as being incompetent, irrelevant, and immaterial, and that the evidence was admitted with the understanding that the objections to its admission would be ruled upon when the court came to consider the law of the case. *162 The witness testified that the plaintiff returned to him his deposit of $1,000 on the 3d day of January, 1929. On redirect examination the witness was asked:
"Q. You stated on cross-examination that you paid $1,000.00 for an option — what did you mean by that? A. I meant that I put down $1,000.00 for Mr. Brentner's Artesian acres — 480 acres — I paid $1,000.00 on that deal."
We do not deem it necessary to further review the evidence in order to determine whether or not the judgment of nonsuit should be affirmed or reversed. The record discloses that upon the conclusion of the testimony of the witness Witcher, the plaintiff rested her case. The defendant moved for a nonsuit upon the ground that the plaintiff did not make a sale or procure a purchaser in accordance with her contract of employment, as evidenced by the telegrams which passed between the parties on December 26, 1928, as hereinabove set out.
1. Conceding that defendant's telegram of December 26, 1928, constituted the plaintiff's contract of employment, it is clear that in order for the plaintiff to be entitled to the commission specified therein, or any part thereof, it was her plain duty to procure a purchaser who was ready and able to comply with the exact terms of her contract to make a sale. 4 R.C.L. 313, sec. 52. This the plaintiff did not do.
2, 3. It will be observed that the offer contained in the defendant's telegram in answer to that of the plaintiff was twofold: One, to accept $108,000 for the land in question, payable one-third in cash and the balance in one and two years with 7 per cent interest on the deferred payments; the other, to give an option for the period of 30 days for $1,000. The plaintiff sought to recover $3,000 as compensation for her services in procuring a purchaser ready and willing to complete the purchase for the price and upon the terms stated, who paid $1,000 to be applied to the purchase price of the land, and as a part of the cash payment of $36,000, the balance of which was to be paid within 30 days from *163 December 26, 1928. It is manifest that this was not an acceptance of the defendant's offer, as made, and there being no evidence whatever to show that the defendant accepted or ratified the plaintiff's unauthorized act of acceptance of $1,000 from Witcher, to be applied on the sale price, and as a part of the cash payment required, we conclude that the judgment of nonsuit should be affirmed.
It is so ordered.
