200 Ky. 146 | Ky. Ct. App. | 1923
Opinion of the Court by
Affirming.
Appellees and plaintiffs below, L. D. Harris and George D. Speakes, were partners engaged at Paris, Kentucky, in the business of real estate brokers. Some time in the latter part of October, 1917, appellant and defendant below, J. W. Ferguson, listed for sale with plaintiffs his farm in Fayette county containing 444 acres at $135.00 per acre. They began a search for a purchaser and on November 6 following they induced W. E. Davis, a prospective purchaser, to look at the farm which was shown to him by Harris, and the latter arranged with Ferguson for a meeting between the two at Ferguson’s house on that evening. The conference lasted about two hours or more and resulted in Ferguson writing and signing this proposition: “I hereby agree to sell to W. E. Davis my farm at Avon, Ky., for $140.00 per acre, including farm implements and teams, one-third cash, bal. 1 and 2 years with interest. This proposition is binding for ten days but may be withdrawn any time before accepted by mail. Engine cutter not included. This Nov. 6th, 1917.”
It is shown in the record that the price was increased in the proposition five dollars' per acre above the listed price with plaintiffs, in order to take care of the personal property included in the proposition. After leaving Ferguson’s house on the same day Davis addressed to bim this communication of acceptance, which he signed: “Hereby I accept your proposition to accept your farm at Avon, Fayette county, Kentucky, containing, according to your estimate, 444 acres at the price of $140.00 per acre, and in full accord with the terms of the .written proposition which you made me. This is my acceptance of the proposition and my agreement to purchase your farm and other property, as per proposition, and you may get up deed when you so desire, but I suppose that I can see you
Twenty days after the acceptance of defendant’s proposition by Davis the two met in a hotel in Lexington and engaged in a conversation or negotiations concerning the sale of the farm and the contract which they had made with reference thereto. That meeting resulted in the execution of a new and independent contract which was drawn with extreme particularity and formality, and in which defendant gave to D-avis and a joint purchaser, J. E. Johnson,- an option to buy the land upon the same terms contained in the original proposition of November G, 1917, as to price and tenns of payment, but it differed from the first contract in that Davis and Johnson were to have until March 1,1918, to determine whether they would accept the option and purchase the farm, and it was stipulated and agreed that if they declined to do so they would forfeit .to defendant the $2,500.00 which they paid at that time. A short while prior to the agreed date (March 1, 1918) for the carrying of that option into:an executed conveyance and otherwise-performing its terms, Davis and Johnson notified defendant that they declined to exercise the option and that he could keep the $2,500.00 deposit left with him, which he did. The agreed commission due plaintiffs under, the terms of listing the land Avith them amounted to $1,198.80, and this action was filed by them against defendant in the Fayette circuit court to recover that sum upon the ground that they had complied with their brokerage agreement in every respect and that when Davis accepted defendant’s proposition on November 6, 1917, their commission was earned and' that they had demanded of defendant payment of it which, he refused to make.
The answer, as amended, consisted of a denial of some material parts of the averments of the petition, and in another paragraph averred that between November 6,
A trial before a jury resulted in a directed verdict in favor of plaintiffs for the full amount of their commissions, upon which judgment was rendered, and the court declining to set it aside on a motion for a new trial defendant has appealed, urging through his counsel as grounds for a reversal (1), that the above inserted proposition and acceptance did not constitute an enforceable contract for the sale of real estate and (2), that plaintiffs by reason of the alleged statement of Harris to defendant es-topped themselves from insisting on the right to recover.
In support of ground (1), it is strongly insisted that the memorandum of the agreement for the sale of real estate required by our statute of frauds (section 470 of the present statutes), and which in this, case is embodied in the above proposition of defendant and its acceptance and communication by Davis, was not sufficiently full and explicit to enable the former to specifically enforce it against the latter. Its defects in those respects, as contended, are, that it does not fix the time for the execution
Hence, in the reference to Ruling Case Law it is said: “The memorandum need not state the particulars of the contract if its essential terms and substance are stated,” and succeeding sections and pages point out that such terms as the law will imply from what is stated need not' be inserted in the memorandum, since as said on page 643 of the same volume, ‘ ‘ The statute does not require the agreement to be in writing but merely a memorandum thereof, and it is the general rule that -a memorandum wholly untechnical in form may be sufficient.” In the reference to Jones on Evidence, it is also shown that only the essential terms of the contract are required to- be stated in the memorandum and that they are (a), the names of the parties to the agreement; (b), a sufficient description of the thing sold, and (c), that the mem
Taking up now for consideration contention (2), tbe law generally is that a real estate broker is entitled to bis commissions when he produces a purchaser who is not only then, but at all times, ready, able and willing to purchase the property on the prescribed terms, though tbe vendor refuses to enter into tbe enforceable contract,
Here," as we.have seen, there is no question of the plaintiffs’ good faith in presenting Davis as a purchaser and defendant accepted him and entered into an enforceable contract with him, and under the rule, as announced in the cases supra, plaintiffs ’ commissions were earned at. the time of the execution of that enforceable contract. So that the conversation with plaintiff, Harris, relied on could not be regarded as releasing defendant from the payment of the commissions, if for no other reason than that there was no consideration therefor. Neither can the pleaded statement of Harris he treated or regarded as constituting an estoppel against him. It did not purport to confer, nor can it be construed as conferring, authority on defendant to release Davis from the original contract or to¡ direct him to rescind it entirely and enter into a new and independent option contract with Davis. At most the only legitimate construction that can be placed upon it was that Ferguson might amend, modify or alter some of the express or implied terms of that contract so as to meet any reasonable desires or objections of Davis and to thereby induce him to carry it out by eliminating any minor objections he might have to doing so, such as, for instance, postponing the implied time when it was to be performed, or extending the time of the deferred payments, or dividing them up into a greater number of smaller amounts, or providing for interest on them from the date of their maturity, instead of from the date of the conveyance as implied by law, or, possibly, by accepting a reasonable reduction in the price to be paid for the land; but the statement, if made, evidently did not authorize defendant to rescind or entirely abrogate the contract and substitute in lieu thereof a wholly new and independent one, nor was it susceptible of that construction.
We, therefore, conclude that the court was right in directing a verdict in favor of plaintiffs, and the judgment is affirmed.