Fox v. Cohen, 34 App. D.C. 389

Fox v. Cohen

34 App. D.C. 389 | D.C. Cir. | 1910

Mr. Chief Justice Shepard

delivered the opinion of the Court:

1. The first error assigned is on an exception taken to the evidence of the investigation of the financial condition of the purchaser. It is not necessary to consider which party had the burden of proof on this point, as the appellees voluntarily assumed it to excuse their failure to take action against Waldron. It is argued that the evidence is incompetent, as well as insufficient, because the witness did not give a detailed account of the steps taken in his investigation. The testimony *392was not only competent, bnt sufficient to make a prima facie case. If appellant desired this specific information, it was open to him to cross-examine the witness.

2. It is well settled that when an authorized agent procures a purchaser he becomes entitled to his commission, although the sale may not be consummated, provided the failure is due to the default of the owner of the land. Dotson v. Milliken, 27 App. D. C. 500-514, and cases therein cited. In this case the vendors had a satisfactory title and were anxious to conclude the sale, which was prevented by the refusal of the purchaser to comply. If, as the evidence tended to show, there was no reasonable probability that a decree or judgment against him .would be of any value, the vendors were under no obligation to go through the form of bringing a suit against him.

The contention of the appellant is that, when an agent procures a purchaser on the terms proposed by the principal, and the latter accepts the purchaser, then he is entitled to his' commissions whether the defaulting purchaser is or is not responsible.

The contention, on the other hand, is that before the agent is entitled to Compensation, the purchaser must not only have entered into an agreement to purchase, but must also have actually complied with its terms, unless compliance is prevented by the fault of the principal. This proposition has the support of some well-considered cases in Maryland and elsewhere. Kimberly v. Henderson, 29 Md. 512—515; Richards v. Jackson, 31 Md. 253, 1 Am. Rep. 49; Riggs v. Turnbull, 105 Md. 135-148, 8 L.R.A.(N.S.) 824, 66 Atl. 13, 11 A. & E. Ann. Cas. 783; De Santos v. Taney, 13 La. Ann. 151. Under the facts of the case it is not necessary to pass upon these conflicting contentions. The relation between a principal and his agent is of a confidential nature, requiring perfect good faith on the part of the latter, and entitling the principal to the benefit of his knowledge and advice.

When the appellant procured the purchaser, he said that he believed him to be responsible, and that he was “all right in every respect.” Upon this representation the appellees acted. *393There was no reason why they should prosecute an independent inquiry before accepting the purchaser. The sale was not to be made solely upon credit. If the purchaser was “all right,” he could be expected to make the small cash payment, and then the lien upon the property would be security for the deferred payments.

Under these circumstances it would be unjust to make the appellees pay a commission for a sale that the irresponsible purchaser refused to complete. We are not to be understood as intimating that the appellant acted in bad faith; doubtless, he fully believed that the purchaser intended to comply. But the proposition of law for which he contends would offer a temptation to careless or unprincipled agents to make sales to irresponsible bidders at high prices, without any reasonable expectation that the terms of sale would be complied with or could be enforced. The charge of the court substantially embodied the doctrine above laid down; and the judgment will therefore be affirmed, with costs. Affirmed.