193 P. 1109 | Utah | 1920
Defendants’ general demurrer to plaintiff’s complaint having been sustained, and plaintiff not desiring to amend, this action was dismissed. Plaintiff appeals from the judgment of dismissal. The only question is whether the facts stated
The allegations of the complaint are, in substance: That plaintiff is engaged in the business of buying and selling real estate in Richfield, Utah, under the name of Sevier Real Estate Agency. That defendants at all times mentioned were the owners of certain premises in Richfield, Utah. That on August 9, 1918, defendants made and delivered to plaintiff an agreement in writing for the sale of said lands, as follows:
“Know all men by these presents that Margaret Boyle of Rich-field, Sevier county, state of Utah, the first party, in consideration of the undertaking on the part of the Sevier Real Estate Agency, the second party, to find a customer to purchase herein described property.
“The first party hereby gives and grants unto the second party or its assigns, the sole option and right to purchase, at any time during one year from date, the described premises for the purchase price of three thousand and no/100 dollars; terms, $60.00 monthly until fully paid with 8 per cent, interest per annum on deferred payments to be paid to the first party at the office of the second party, Richfield, Utah, upon the exercise of this option.
“The first party agrees to deliver to the second party a certified abstract of title showing title in fee simple, together with a good and sufficient deed conveying the title in fee to the second party or its assigns, at any time it is requested, before this option or term shall expire.
“The first party agrees to pay second party 7 per cent, of the sale price as commission at the time a sale is consummated.
“The term ‘customer’ as used herein is interpreted to mean any one whom the second party shall have interested, either directly or indirectly.
“The first party agrees that this option shall not terminate until the expiration of ten days’ written notice to the second party, or its assigns.
Description of Property.
“One-half of one full lot, together with improvements (two houses) and all appurtenances thereon located on the S. W. corner of the intersection of Third, East and First South streets, Rich-field, Utah, being 107% feet by 214% feet.
“Water right, City irrigation.”
The complaint further alleges that under the terms of said agreement plaintiff became bound upon the exercise of his option to pay to defendants the sum of $2,790.00 in monthly installments of $60, together with 8 per cent, interest
The first objection to the complaint is that no consideration passed from plaintiff to defendants in payment of the purported option. The written agreement was without consideration, and no obligation was imposed upon the signers unless before withdrawal by them it was accepted by plaintiff according to its terms. Not being supported by a consideration, the option had no greater efficacy than a continuing offer. 6 R. C. L. p. 603, par. 25. So long as the offer has been neither accepted nor rejected, the negotiation remains open, and imposes no obligation on either party. The one may decline to accept or the other may withdraw
It is argued by counsel foy defendants that because the complaint contains no allegation that'an offer to secure the
In support of the demurrer it is further contended that—
“the agreement, if anything at all, is only a contract for the employment of a broker upon commission, and is not an option to purchase, and that a broker who sells property for another, or to find a customer to purchase real estate for another, cannot, under such a contract, become the purchaser himself.”
Taking the contract as a whole and giving effect to all of its provisions, we are unable to avoid the conclusion that the
In Burt v. Stringfellow, 45 Utah, 207, 143 Pac. 234, Mr. Justice Frick said:
“It is also a well-established doctrine that one and the same person may enjoy the privilege of purchasing, and at the same time have the right of selling on commission either personal or real property. See cases referred to in the case of Neighbor v. Realty Ass’n, 40 Utah, 619, 124 Pac. 523.”
The remaining question is whether plaintiff was entitled to a commission when he himself became the purchaser. If he had procured a customer who had purchased, plaintiff would have been entitled to a commission, and defendants would have received the $3,000, less the commission.
“It seems to us that it was the intention of all the parties to the contract in question to grant the appellant a fixed time within which he had the exclusive right either to purchase or sell the property at the price stipulated in the contract, and if he did either he was to receive 5 per cent, of the selling price as a commission.”
It will be observed that plaintiff deducts all of his com
Our conclusion is that the complaint states a cause of action, and that the district court erred in sustaining the demurrer. The judgment is therefore reversed, with costs, and the cause is remanded to the trial court for further proceedings.