81 Md. 650 | Md. | 1895
delivered the opinion of the Court.
The plaintiffs entered into a written agreement with the defendants, by the terms of which the latter were to take charge of, manage, lay out and plat into suitable lots certain lands owned by the former on the south side of Severn River, about one mile from Annapolis,. and to develop and sell the same under certain conditions, as stipulated in the agreement just mentioned. It will be unnecessary for us to rehearse all these stipulations, for the main contention upon the merits of the case is based alone upon that which relates to the compensation the defendants are entitled to.
The plaintiffs filed their bill in the Circuit Court for Anne Arundel County, charging the defendants with having violated their contract in almost every particular, and with having combined and confederated for the purpose of injuring and defrauding the plaintiffs. The bill asked for a
The Court below adopted that of the plaintiff, and by its order of the I2th Ottober, 1894, overruled the defendants exceptions thereto, except as to the one item of forty-two dollars and thirty-four cents, and sustained all the exceptions of the plaintiffs to the defendants’ accounts. From this decreee of the ■ 12th October, 1894, the defendants have appealed, and have thus presented several questions.
The plaintiffs contend that there is only one question before us, and that is the correctness of the accounts which were ratified below, while the defendants insist that by virtue of their appeal they also bring up the question of the juris
The only questions, therefore, now open for review, are those presented by the decree ratifying the accounts filed by the plaintiffs. This account, which is designated as “Account Complainants, No. 1,” was ratified by the order of the 12th of October, 1894, with one modification, namely, an additional credit of $42.34 was allowed the defendants, thus making the total indebtedness found to be due by the defendants to the plaintiffs to be the sum of $1,673.27, with interest from the institution of the suit. There was no objection made to> the accuracy of the ratified account, but the objections are confined to the principles upon which it is stated. We think, however, there is no error in this respect. The claims set up by the defendant cannot be maintained.
1. Upon a fair and reasonable construction of the contract, whatever may have been the practice of the parties under it, we think it clear that the defendants, as agents, had no authority to collect and receive from the purchasers the proceeds of sales of lots. On the contrary,
2. The next claim made by the defendants is that they should have been "allowed commissions on the entire purchase money out of the first instalments collected by them. But such a contention is based on neither justice, reason nor authority. It is true that the general rule has often been approved by this and many other Courts, that commissions are earned when the agent or broker finds á purchaser able and willing to complete the purchase according to the terms agreed on, and who ultimately becomes the purchaser. Kimberly v. Henderson et al., 29 Md. 515. If the purchase money be not paid by the fault of the vendor, the agent would still be entitled to his compensation. But, as was held in Richards v. Jackson, 31 Md. 253, the meaning of Kimberly v. Henderson is that “it is not sufficient to entitle the broker to commissions that the purchaser should enter into an agreement to purchase, but he must actually purchase, by complying with the terms agreed on, unless his failure to do so is occasioned by the fault of the vendor.” The only fair and equitable rule where the purchase money is, as here, payable in instalments, is to allow commissions on the instalments as paid from time to time, for until they are actually paid the terms of the sale have not been complied with. Any other construction would only offer inducements to sell for the purpose of securing all of
3. The defendants claimed, as their own, all instalments paid to them in cases in which the whole purchase money was not paid, and the purchasers have abandoned their purchases. We entirely agree with what the learned Judges below said in regard to this claim. They characterized it as “utterly untenable; not within the terms or spirit of the contract; by no rational construction to be inferred therefrom, and repugnant to every principle of law and equity.”
4- Interest was properly allowed. The defendants, as agents, should have promptly paid over to their principals the amounts collected, less commissions, as provided by the contract, and having failed to do so, they have no reason to complain if they are required to pay interest from the institution of the suit.
5. Nor do we see how the Court below could have done otherwise than reject the credit claimed by the defendants for money loaned to J. West Aldridge — that being a. transaction between them and him in which the other plaintiffs are in no wise interested.
Finding no error, the decree of the 12th October, 1894, will be affirmed.
Decree affirmed.