168 Iowa 149 | Iowa | 1914
The contract of agency was in writing. The contract contained the following: “I hereby give you the exclusive right to sell said property, except as hereinafter specified, and will pay you for your services a commission of 2% upon the price for which you may sell said property at the completion of the sale. In case you procure a purchaser for said property upon the terms above named, and I should refuse to convey, or could not give a full and complete title to said property, or if I should in any way obstruct or prevent a sale thereof, you are to be paid by me the same commission and allowance as if a
The contract being one of agency and nothing more, it was, of legal necessity, revocable at any time by either party. It does not necessarily follow, however, that there could be no liability thereunder of one party to the other in case of breach of the agreement relating to compensation. It is also the rule that the right of the owner to sell his own property is implied in every contract of agency unless expressly negatived. In Ingold v. Symonds, 125 Iowa 82, it was said:
“The right of an owner to sell his own property is an implied condition of every contract of agency and unless expressly negatived will prevail. The commission is payable only in case of the agent’s finding a purchaser and the agent takes his chances on the owner himself making a sale. The only effect of such a contract as the one now before us is to forbid the owner from placing the property in the hands of any other agent. Under such a contract the owner has a right to sell the property himself without in any way violating his obligation to his agent.”
Counsel for appellant claim a distinction between the cited case and the case at bar. In the cited ease the contract of agency was “to find a purchaser,” whereas in the case at bar the contract conferred upon the agent the ‘ ‘ exclusive right to sell.” The contract being one of agency only and coupled with no interest, the right of revocation is precisely the same in one case as in the other; and the implied right of the principal to do for himself the thing which he had authorized his agent to do is as applicable to one ease as to the other.
If in the Ingold ease the principal, who had given to his
Special reliance is placed by plaintiff upon the case of Metcalf v. Kent, 104 Iowa 487. In that ease the agent plaintiff was allowed to recover the stipulated commission. That was a case also of exclusive agency to sell. The principal expressly agreed to pay the commission “in ease the above property is sold during the pendency of this contract.” Such is not the provision of the case before us. On the contrary, in the ease at bar the promise to pay a commission is expressly conditioned upon (1) a sale of the property by the agent, or (2) “in ease you procure a purchaser for said property upon the terms above named.”
We think that the case is ruled at all material points by
The demurrer was properly sustained and the petition properly dismissed.
The order of the trial court is therefore — Affirmed.