108 Va. 1 | Va. | 1908
delivered the opinion of the court.
This is a motion, under the statute, by the plaintiff, W. A. Parsons, to recover of the defendant, H. G. Hennings, $650, alleged to he due as commission for services rendered by him in and about the sale of the defendant’s farm, “Fairfield,” in Groochland county. •
The whole matter of law and fact was submitted to the determination of the circuit court, and judgment given in favor of the plaintiff. This judgment we are asked to review.
The record shows that the defendant placed his farm, “Fair-field,” in the hands of several independent real estate agents for sale, the plaintiff being one of those who was authorized in writing to sell. On the morning of the 18th of January, 1906, the plaintiff, W. A. Parsons, by appointment with the defendant, who was to meet him at the station, proceeded from Richmond to Goochland county with a prospective purchaser from Indiana. The train was behind time, and the arrival of the plaintiff was thereby delayed for one hour and a half. In the meantime R. F. Vaughan, another agent who had also been authorized to sell, presented himself with a purchaser, to whom a sale was at once made; Vaughan being paid $650 from the proceeds of the sale consummated by him, that being the commission agreed upon. When the plaintiff arrived with his prospective Indiana purchaser, who was able and ready to buy, he was at once informed by the defendant that the farm had been sold to parties who were then in the house.
It clearly appears from the record that the defendant had been for some time extremely desirous of selling his farm, in
As a general rule, where an owner puts his property in the hands of several real estate agents to sell, the agent who first procures a purchaser is entitled to his commission to the exclusion of the other agents. 23 Am. & Eng. Ency. of Law (2nd ed.), pp. 928-929.
This general rule may, however, be modified by contract or entirely subordinated to its provisions.
The contention of the plaintiff is, in effect, that he had the exclusive agency for the sale of the farm, and that until he had received ten days’ notice the defendant could not sell through another agent without making himself liable to the plaintiff for his commission. In support of this contention, the plaintiff relies upon the written agreement which provides, that the “contract is to continue in force until ten days’ notice is given in writing withdrawing the same from market.”
That part of the contract between the parties, needful for present purposes, is as follows: “I hereby authorize W. A. Parsons, president and general manager of the James River Valley & Tidewater Land Company, to sell for me the above described property in Goochland county, containing 418 acres; and I agree to pay him 10 per cent, commission on the above amount, or upon the amount finally agreed upon at the time of sale, out of the first cash payment, if he, or any member of said company, sell ¡said property, or is in any way instrumental in aiding me to sell, even if the sale should be consummated after the expiration of this contract, provided the sale was made to a party whose attention was or has been called to said property through advertisement or otherwise of said company. This contract to continue in force until ten days’ notice is given in writing withdrawing the same from market. No charges for advertising.”
There is nothing in the contract to justify the contention that the plaintiff had the exclusive right to sell the farm until after the expiration of ten days’ notice; and the acts of the parties preclude the idea that any such right was intended to be secured to the plaintiff by the contract. On the 8th of January, 1906, the plaintiff wrote the defendant a letter, which is in the record, telling him of his prospective Indiana purchaser, and that he had written him to come. In this letter he says: “How do not let the place go until you hear from me, even if you had a chance, for I am sure this will be a sale, should you have an offer before he wires me, you could say you had given refusal for fifteen days.” This language is wholly inconsistent with the contention now made, that the plaintiff was acting under a contract which gave him the exclusive right to sell.
This, correspondence between these parties shows, that the construction of the contract now contended for by the plaintiff, that he was to have the exclusive right to sell until after the expiration of ten days’ notice by the defendant, was never intended by them or contemplated in any of their dealings with each other. The record justifies the conclusion that the farm, “Pairfield,” was in the hands of several independent real estate agents for sale, with the knowledge and acquiescence of the plaintiff, W. A. Parsons. That these agents knew that the defendant, H. G. Hennings, was extremely anxious to sell and intended "to sell to the first available purchaser; and that the defendant preserved an attitude of neutrality between the respective agents, and acted in good faith throughout. Under these circumstances, the general rule governs, and the agent who first produced the purchaser was entitled to his commission to the exclusion of the other agents.
Por these reasons, the judgment complained of must he reversed; and, this court proceeding to render such judgment as the circuit court ought to have entered, it- is ordered that the plaintiff’s motion he dismissed.
Reversed.