211 Mich. 498 | Mich. | 1920
In July, 1917, defendant and his wife owned a recently completed apartment building called the Cadillac apartments, located at Nos. 1860-1866 East Grand boulevard in the city of Detroit, which they desired to sell. Plaintiff was engaged in the real estate business with offices in the Penobscot building and some time after July defendant authorized him to secure a purchaser, stating a selling price of $110,000. Plaintiff worked to effect a sale and presented the matter to various prospective purchasers. In the fore part of September he succeeded in interesting with fair assurance of success a prospective purchaser named Louis I. Frank. Up to that time no agreement, oral or written, had been made between the parties in regard to a commission. On September 13, 1917, defendant went to plaintiff’s office to discuss propositions plaintiff had told him of and the latter then asked for a written agreement regarding the amount of his commission for selling the property. This was agreed upon and put in writing, as follows:
“Nathaniel J. Greenberg,
“Real Estate,
“730 Penobscot Building,
“Detroit.
“September 13, 1917.
“I, N. Sakwinski, hereby agree to pay you, Nathaniel J. Greenberg, the sum of eight hundred dollars ($800.00) as your commission upon the sale of my*500 apartment house, located at 1360-66 East Grand boulevard, known as the Cadillac apartments, payment to be made at the time of settlement of sale. No other parties to be connected with the sale.
“N. SAkwinski.
“I hereby accept the above.
“N. Greenberg.”
They discussed various possible deals plaintiff had ■worked on, and, as Frank seemed the most promising, they went together on that day to his office where, after considerable discussion and negotiation regarding price, terms, etc., a written agreement was entered into between defendant and wife and Frank by which they agreed to sell him the property for $101,000 payable as follows: $300 down on signing the contract, $41,000 to be paid by delivery of a warranty deed from Frank to them of certain property-he owned, at an agreed value of $50,000 subject to a mortgage of $9,000 which they agreed to assume, Frank to assume a mortgage of $46,000 on the apartment building he was purchasing, and the balance of. $13,700 in cash on concluding the transaction, which was to be done' within 25 days after delivery by the respective parties to each other of abstracts of their properties brought down to date. The $300 eash down was paid by Frank when the contract was signed and the abstracts agreed upon between the parties were duly delivered, but the deal was never consummated owing, as plaintiff claimed, to the fact defendant later agreed to take a certain contract worth $14,000 from Frank in lieu of the final cash payment of $13,700, Frank, however, being ready and willing at all times to pay cash if defendant wished, and while that matter was pending defendant unexpectedly and without any notice to plaintiff or Frank sold the property to other parties.
Defendant claimed on the other hand that Frank did not have the money and could not make the cash
When plaintiff learned that defendant had sold the property to others he demanded his commission and on defendant’s refusal this action was brought. Upon the trial the court permitted the parties to go fully into what was said and done subsequent to the signing of the written agreement for a commission, but held that all testimony as to previous negotiations or understandings upon the subject was. merged in the writing and was not admissible to vary its terms or affect its construction.
At the conclusion of plaintiff’s testimony defendant’s counsel' moved for a directed verdict on the two grounds that the writing was not sufficient under the statute, and the condition precedent in it was not fulfilled, which was denied. This motion was renewed -at the conclusion of all the testimony, and plaintiff’s counsel then also asked for a directed verdict in his favor. Both motions were denied and the case submitted to the jury resulting in a verdict and judgment for plaintiff in the sum of $865. Defendant moved for a. judgment non obstante, which was denied, followed by a motion for a new trial with request for written findings and conclusions of law, which were filed denying said motion. Written exceptions were thereupon filed to the court’s findings.
Defendant’s 24 assignments of error are grouped into five propositions as follows:
*502 "1. The written agreement here sued upon, Exhibit 1, is void under the amendment to the statute of' frauds.
“2. Under the terms of Exhibit 1, no commissions were payable or owing until title passed and the sale was consummated, which was never done, and, therefore, no commissions were earned.
“3. Plaintiff did not prove such performance of his contract as would entitle him to a commission.
“4. The court erred in charging the jury that Exhibit 1 gave plaintiff an exclusive agency for the sale of defendant's property, and if terminated by him without notice, the plaintiff would be entitled to recover.
“5. Plaintiff did not procure a purchaser ready, able- and willing to buy.”
Of the last contention it is sufficient to say that the testimony of the parties was in conflict upon whether Frank, the purchaser whom plaintiff produced, was ready, able and.willing to pay. A special question was submitted to the jury upon that issue and answered in the affirmative.
As to the fourth contention the court held the concluding sentence in the agreement (“no other parties to be connected with the sale”), gave plaintiff an exclusive agency of the sale of the property, upon which there was no time limit, instructing the jury, “that-said agreement could not be terminated by defendant without a notice to plaintiff, and, if defendant did not give plaintiff such notice, the plaintiff is entitled to recover the commission agreed upon when the sale of' this property was made through other persons.”
Defendant’s fourth contention, to the effect that the court committed error in instructing the jury plaintiff was given an exclusive agency for the sale of this, property by the terms, of the agreement and if terminated by defendant without notice plaintiff would be entitled, to recover, is based chiefly on the claim that plaintiff’s counsel elected to stand on the second count
We do not find anything further in the course of the trial to indicate that counsel abandoned all but one of his counts, or the court or opposing counsel then, regarded his assertion in side-bar» debate, that he was ready “at this time” to plant it on one count was a
The claim that no commission was payable, or owing, until title passed and the sale was consummated, under the language of the contract that payment was to be “made at the. time of settlement of the sale,” calls for no extended discussion. If plaintiff fully performed on his part and defendant’s mal-conduct rendered it impossible to make “settlement of the sale” according to the land contract he had signed he is estopped from taking advantage of his own wrong.
Counsel’s contention that this written agreement is void under the amendment to the statute of frauds, Act No. 238, Pub. Acts 1913 (3 Comp. Laws 1915, § 11981), requiring agreements for commissions on sale of real estate to be in writing, is predicated on its failure to specify the selling price, or terms of sale; and it is urged that to be valid under the statute of frauds a contract to pay a commission on sale of real estate, like any other contract required to be in writing, must be complete in all its parts and leave nothing to rest in parol. It may be conceded that the agreement as executed by the parties was an awkward effort, left by the scrivener in the particulars mentioned unilateral and what might in a sense be
This situation is well illustrated in principle by Justice Ostrander, in Cochran v. Staman, 201 Mich. 630, as follows:
“The writing relied upon, in my opinion, is a promise to pay a commission for or upon a’ sale of real estate. So far as the statute of frauds is concerned, no more is required. Suppose that the seller, in this case, and the proposing buyer, produced by plaintiff, had agreed upon terms of payment and completed a sale and conveyance of the premises for $100 an acre. In an action for the commission, could the seller defend upon the ground that the promise to pay the commission was not in writing. I think not.”
As we have pointed out, there were material issues of fact as to events subsequent to the parties entering into this written agreement for a commission. Apparently the most vital and square cut of these was whether Frank was ready and able to pay the $13,700
The material issues of fact raised by the testimony were left to the jury under proper instructions.
We find no prejudicial error in this record calling for reversal, and the judgment will stand affirmed.