4 Conn. Cir. Ct. 649 | Conn. App. Ct. | 1967
The plaintiff, a real estate broker, brought suit against the defendants, claiming that he had been engaged to sell certain real estate, jointly owned by them, and had produced a customer ready, willing and able to purchase the property on terms fixed by the defendants, and that he was entitled to an adjusted commission of $2500 on the gross sales price of $72,500. The court rendered judgment for the plaintiff, from which the defendants appealed.
The finding, with such corrections as are warranted, shows the following facts: On or about January 7, 1965, the plaintiff was a real estate broker licensed by the state of Connecticut. At and before that time, the defendants Douglas and M. Flossie Howe, husband and wife, were joint owners of certain real property consisting of two four-family apartments and garages situated at 150-152 and 15A-156 Preston Street in Hartford. On that date, Mrs. Howe signed, and also affixed the signature of the defendant Douglas to, an exclusive right to the plaintiff to sell both properties within 120 days for $70,000 net to the owners. Mrs. Howe, at the time she signed the exclusive right to sell, represented that she had a power of attorney and the authority to sign for her husband. No such power of attorney existed and no evidence of such agency was produced by the plaintiff. The defendant Douglas Howe did not testify.
The plaintiff had some prior negotiations for the sale of the property with Mrs. Howe but they did not materialize. At those times, she acted in her husband’s behalf. At the time of the present negotiations, which took place in the living room, on Jan
On March 15, 1967, Joseph Macri, claimed by the plaintiff to be the prospective purchaser ready, willing and able to buy, signed an “agreement to buy.” Neither of the defendants executed the agreement, and both refused to do so. Macri had given the plaintiff a deposit of $1000 on the purchase price. Neither the agreement nor the deposit was shown or transmitted to the defendants. The purchase offer was for $72,500 conditioned on obtaining a first mortgage for twenty-five years for $57,500, at not more than 6 percent interest, and cash of $14,000 on transfer of title. A further condition was that if the mortgage could not be obtained on those terms the deposit would be returned.
The buyer named in the complaint is Joseph Macri. He had an undisclosed brother-in-law who was to be a partner and copurchaser of the properties with him. They were willing to purchase only on condition that they could obtain a mortgage as described above. No application for such a mortgage had been made or a bank commitment received. No title search was made. The purchase offer called for a conveyance by warranty deed. At or about that time, Mrs. Howe for the first time informed the plaintiff that the property was involved in a boundary dispute and that the purchaser would have to take conveyance subject to the pending litigation in the Superior Court. The sale of the property was not consummated.
The trial court also erred in concluding that the failure of the defendants to produce Douglas as a witness, after the plaintiff had made out a prima facie ease, permitted the inference that his testimony would have been favorable to the plaintiff. “When defendant introduces no evidence but submits his case in reliance upon the insufficiencies of the plaintiff’s evidence, no unfavorable inference arises from his failure to produce evidence peculiarly within his knowledge. . . .” Middletown Trust Co. v. Bregman, 118 Conn. 651, 658; Holden & Daly, Conn. Evidence § 65c, p. 190. Moreover, Douglas was equally available to the plaintiff and could have been compelled to testify and have been examined to the same extent as an adverse witness. General Statutes § 52-178.
The remaining assignment of error which we need to examine is whether the court correctly concluded that the plaintiff had produced a buyer ready, willing and able to purchase the property of the defendants on terms satisfactory to them, and was, therefore, entitled to his commission of $2500. From
The second crucial question, as briefed and argued by the parties, was whether the plaintiff produced a customer who was ready, willing and able to carry out the terms of the alleged contract of sale. In the instant case, neither defendant had executed the purported contract. It has been held that even where a contract has been executed by the parties, a broker may not recover a commission unless he also proves the customer’s ability to carry out the terms of the contract. Lesser v. Altnacraig Convalescent Home, Inc., 144 Conn. 488, 491.
A broker, admittedly, is entitled to his commission when he has procured a customer ready, able, and willing to purchase upon terms prescribed or accepted by the seller. Martino v. Palladino, 143 Conn. 547, 548. What constitutes the buyer’s readiness and ability to buy on the seller’s terms is one of fact; and “[w]here corrections in a finding destroy the essential basis of the trial court’s decision, a new trial is properly ordered.” Thomas F. Rogers, Inc. v. Hochberg, 143 Conn. 22, 25. Where, however, as appears in this case, the plaintiff has not proved that the conditions precedent to a sale had been met, there is no issue to be remanded for a new trial. From the recital of the facts, as contained in the finding and the allowable corrections,
There is error, the judgment is set aside and the case is remanded with direction to render judgment for the defendants.
In this opinion Deabington and Macdonald, Js., concurred.