101 P. 984 | Utah | 1909
Little & Little, real estate brokers, brought this action against Fleishman to recover their commission for the sale-of real estate. The terms of their agreement are contained in the following proposition submitted by Fleishman to Little & Little on the 3rd day of December, 1906: “Yon are given exclusive authority to sell for me the following described property,” situated in Salt Lake City, “for the sum of thirty-three thousand dollars upon the following terms, to wit, twenty-five hundred cash, bal. thirty days; and in the event of a sale at any price agreed upon I agree to pay the regular commission, which is five per cent, on amounts up to twenty-five hundred dollars and two and one half per cent, on amounts in excess thereof. This order good for till five p. m. to-day.” On the same day, and within the time specified, Little & Little procured a purchaser, a Mr. Lichenstein, who was able, ready, and willing to buy the property on the terms proposed. On that day, and after plaintiffs had introduced Lichenstein to Fleish-man, the two last-named parties entered into a written agreement whereby Fleishman agreed to sell the property to Lich-enstein for the sum of thirty-three thousand dollars. Twenty-five hundred dollars was that day paid in cash, five thousand dollars to be paid January 2, 1907, and twenty-five thousand and five hundred dollars February 1, 1907. Fleish-man agreed within ten days from the date of the agreement “to furnish to date and tender to said second party (Lichen-stein) a complete abstract of said premises;” that Lichen-stein should have until January 2, 1907, to examine the abstract, and “if the title is marketable, and' the said second party elects not to buy, then said receipted sum is forfeited; if the title is not marketable, then said receipted sum to be returned,” to tender to Lichenstein a deed on February 1, 1907, or sooner if demanded, if title is not marketable, then, to make it so on demand, “if the said second party binds himself to buy,” and' “to accept payment (if said second party buy)” of the balance of the purchase price. Upon an-examination- of the abstract of title by an attorney em
The defendant on appeal, briefly stating, contends that by the terms of the agreement between plaintiffs and the defendant they undertook, not merely to procure a purchaser, but to sell the property; that the defendant agreed to pay the commission “in the event of a sale;” that the agreement entered into between Lichenstein and Fleishman was not a sale but a mere option to purchase, and hence plaintiffs had not earned and were not entitled to a commission. There would be force to appellant’s contention if the failure to buy had not been due to the owner’s fault. The substantial features of the agreement between plaintiffs and the defendant are that the plaintiffs were employed to effect, not consummate, a sale, and were entitled to a commission in the event of a sale at any price agreed upon. When the plaintiff obtained and procured a purchaser who was
The judgment of the court below is affirmed, with costs.