206 Mich. 113 | Mich. | 1919
Plaintiff is a real estate broker in Detroit, and recovered a judgment in the court below for a commission claimed to have been earned by him. Defendant brings the case here upon a record containing 65 assignments of error, all of which have been examined and but one of'which is well taken. It will therefore be necessary to state only such facts as bear upon this assignment of error. The property involved is located at the corner of Cedarhurst and Woodward avenues, and defendant’s title was re
“If you find from the evidence that Jack Gettleson prior to May 12, 1916, knew of the restriction against the sale of liquor on the premises and permitted the words ‘absolutely unrestricted’ to be inserted in the agreement between buyer and seller, he cannot recover in this action.”
This request was refused and the defense was limited to the question of fraud between the purchaser and plaintiff.
While the language of the request is somewhat inapt, we are impressed that it fairly presented the claim of the defendant that the plaintiff could not recover if he had knowledge of the restrictions and with such knowledge procured a purchaser for and prepared a contract requiring an “absolutely unrestricted” title. Counsel do not disagree as to the rule that a commission is earned when a purchaser ready, willing, and able to buy on the terms specified, is produced. This rule is well recognized. But where the principal’s title is defective and the agent has knowledge of such defect and it is not such a defect as may
“While the weight of authority is to the effect that it is no defense to an action brought by an agent against his principal to recover commissions for negotiating a sale of land that the principal does not hold title to the land, or cannot convey a perfect title (see 19 Cyc. p. 240, and cases cited in note), yet the decisions generally hold that where a broker, who at the time he makes his contract with the owner, knows of defects in the employer’s title, or who knows of facts sufficient to put a prudent person on inquiry, which, if followed with reasonable diligence, would have resulted in such knowledge, he is not entitled to recover where the sale failed because of such facts, unless it was the intention of the parties that the employer should subsequently perfect his title in order to be able to perform.”
In the instant case there is no claim that the title was or could be perfected, and the sale fell through by reason of the restrictions. The trial judge refused to give the sixth request either in the language requested or in substance and instructed the jury that plaintiff should recover unless the defendant has established fraud between plaintiff and the purchaser. The question of plaintiff’s notice of the defect in defendant’s title was a disputed question of fact. Under the authorities cited the plaintiff had not earned his commission if he, with knowledge of the d’efect here found, procured a purchaser for an “absolutely unrestricted” title, and himself inserted in the contract