22 Ind. App. 294 | Ind. Ct. App. | 1899
— Appellee recovered a judgment for brokerage commissions. Tbe errors assigned question tlie sufficiency of the two paragraphs of complaint as against a demurrer, and the overruling of appellant’s motion for a new trial.
Appellee averred in the first paragraph of complaint that he was a real estate and loan agent, and was employed by appellant to sell or trade some land, who agreed that if he would secure a purchaser, or effect a good trade for other lands, he would pay appellee a reasonable stun for his services; that appellee found a purchaser; that a reasonable fee is $300, which is due and unpaid, though often requested; that the services were rendered at appellant’s special instance and request.
It is argued that this paragraph is insufficient because it does not aver that appellee found a purchaser ready, able,
In the second paragraph, by a special contract, appellee was to sell the land for a named sum; that he procured a purchaser for the price in the person of one Lewis; that appellant sold the land to Lewis for the sum named, and made and •delivered to him a deed; that appellant refused to pay the commission which is due and unpaid. It is true this paragraph speaks of “said land” in the first instance, and refer-
With the general verdict the jury returned answers to interrogatories to the effect that appellant employed appellee to find him a purchaser for his farm; that appellee employed John W. Williams to find for him a purchaser; that Williams found a purchaser for the farm, and introduced him to appellant; that- appellant sold the farm to the purchaser found and introduced by Williams. There is evidence to support these answers. ■
The court gave to the jury the first and second instructions requested by appellee, which, in substance, told the jury that if appellant employed appellee to make sale of his farm, and if appellee found or procured a purchaser ready, able, and willing to buy the farm at the price and upon the terms fixed by appellant, and if ‘appellant had agreed to pay appellee a commission, and if appellant agreed with the purchaser' to take a less price than the (price fixed by appellant with the appellee, and did sell the land to the purchaser for the less sum, he would be liable to appellee for the commission agreed upon, if any; also that if appellant employed appellee to make sale of his farm, and agreed to pay him a commission for finding a purchaser at a fixed price, and if appellee or his agent found a purchaser, and if appellant sold the farm to such purchaser for a price less than fixed by him to appellee, he would be liable to appellee to pay the commissions agreed upon, if any. The second and third instructions given by the court of its own motion are very similar to the above, and
The fifth instruction given by the court of its own motion was as follows: “If John "W. Williams acting as the agent of the plaintiff procured a purchaser for the farm of the defendant under an agreement between the plaintiff and defendant in the person of his brother-in-law who was willing to purchase said farm at the price agreed upon between the plaintiff and defendant, and if said Williams took said purchaser to said Mullen and said purchaser told said Mullen that he would not deal through agents, but wanted to deal with him directly, and asked him what was the least sum he would take for said farm, and said Mullen priced the same at a price less than the price fixed by him to the plaintiff Bower, and, to induce him to sell to said purchaser, the said Williams concealed from him the fact that said purchaser would pay the price fixedTrv the defendant to the plaintiff and induced him to sell in the belief that'if he sold said farm at said less price no commissions would be charged on account of the arrangement between the plaintiff and defendant, the plaintiff could not recover; but if on the other hand said Williams warned the defendant that if he sold at such less price he would be liable for commissions to the plaintiff on account of procuring such purchaser, he would be entitled to recover.” This instruction is correct so far as it goes, but we do not be
Appellant testified that Williams told him his brother-in-law, Lewis, would be up to see the farm; that he met Williams and Lewis going out to look at the farm; that he went out where they were on the farm, and in the conversation Lewis asked witness the price, and said he did not want to trade with any agent; “I want to trade with you individually;” that'witness said to Lewis he would take $6,000; that in the conversation Williams said to witness, “ ‘What will you do about Mr. Bower?’ and I says, ‘Have you and Mr. Bower made any contract about it at all?’ And he says, ‘I don’t charge you anything for this,’ ” that Williams and Lewis both said'that Lewis had not seen or met Bower; and that Williams said that they had made no arrangements with Bower; that at no time during the negotiations did Williams say anything to witness on the’subject of commission to appellee. He further testified that Williams and Lewis wanted to know if he would give them until Monday, and “I told them I couldn’t tell them, that, if Mr. Bower had made arrangements to sell it, I said I will have to let it go. It is first come first served.” Williams testified that he and. Lewis started out to look at the farm, and met appellant; that witness told appellant who Lewis was, and that he had come to Iqok at the farm; that appellant told them to go out and look at the farm; that, while out there, witness priced the farm to Lewis at $6,160, which Lewis agreed to give; that appellant came out and took them through the house, bam, and orchard; that they were standing west of the house, “and my brother-in-law looked at me, and laughed, and he says, ‘Mr. Mullen, what is the least
The first instruction requested by appellant and refused was as follows: “If you find from the evidence given to you in this cause that the defendant employed plaintiff as a real estate broker to sell his farm, and that the plaintiff, for the purpose of aiding and assisting him in selling said farm, and for the purpose of procuring a purchaser therefor, took into his employ and service one John W. Williams, and if
This instruction should have been given. It was for the jury to weigh the conflicting evidence, and determine what it proved; but Williams, who stood in the appellee’s place, was bound to exercise the utmost good faith toward appellant. There is evidence that Lewis had never seen appellee, and that he said he would not purchase of an agent, and desired to purchase direct from the owner, and there is no evidence that appellant knew that the sale was being made by appellee. There is evidence to show that appellant thought he was selling to an independent purchaser so far as appellee is concerned, and there is evidence to show 'that Williams must have known that appellant was laboring under that belief. It was to appellant’s interest to receive the greater price, and it was Williams’ duty to conceal from him nothing that would enable him to get that price. It was his further duty to inform appellant, at the time the sale was being made by appellee. It was appellant’s right to know from Williams that Lewis had offered a greater price, and that the sale was being made by appellee. If these facts were concealed from appellant, appellee could not recover, and whether they were should have been submitted to the jury by a proper instruc
In Young v. Hughes, 32 N. J. Eq. 372, it is said: “Among other things, he [the broker] is bound to disclose to his principal all facts within his knowledge which are or may be material to the matter in which he is employed. The principal has bargained for the agent’s skill and experience, and is entitled to expect his active aid in the conduct of tire negotiations.”
In Marlin v. Bliss, 57 Hun 157, 10 N. Y. Supp. 886, Bliss, the owner, employed Martin at a fixed commission to sell her house at a price named. Martin took a purchaser to see the house, who afterwards agreed with Martin to buy at the price. Martin then went to the owner and endeavored to get her to take less, which she refused to do, and he finally told her they would take the house. The next day Martin went to the owner with a contract for her to sign, but she refused. Suit was brought to recover the commission on the ground that a customer willing to pay the price had been produced. This case recognizes the principle that a broker may recover where he has produced a purchaser willing and able to purchase at the terms fixed. But it was held that, because of the bad faith of the broker in fraudulently concealing from the owmer the fact that the purchaser had acceded to her terms and endeavoring to get her to take a less price, there could be no recovery.
There is a want of good faith on the part of the broker
In Pratt v. Patterson, Ex., supra, it is said: “A real estate broker’s commissions are earned whenever he has procured a buyer who will comply with the conditions fixed by his principal for the property proposed to be sold. But it is to be understood that this rule depends not only on the fact that the broker is to be regarded as the agent of the seller, but that, as such agent, he acts with the utmost good faith towards his principal, and if he does not so act he is entitled to nothing.”
Judgment reversed, with instructions to sustain the motion for a new trial.