59 A.2d 206 | D.C. | 1948
This was a suit to recover a real estate selling commission of $1,250. From a judgment for defendant based upon a jury-verdict, plaintiff appeals.
The evidence disclosed that in October 1945 defendant signed an agreemeent giving plaintiff the exclusive right to sell her property “for a period of 90 days from the date hereof, then longer, unless revoked in writing by me/us.” The sale price named in the listing agreement was $25,-000 net, with a commission of $1,250 payable to plaintiff above that amount (that is to say, the commission to be added would bring the gross selling price to $26,250).
Plaintiff offered evidence that a contract in accordance with these terms,
No more merit is there to his claim that the verdict was contrary to law. He argues the familiar rule that a broker who presents a contract offer from a purchaser, ready, willing and able to buy on the terms authorized by his principal is entitled to a commission. But the weakness of his position is that at the time he presented the contract according to the evidence which the jury seemingly believed, his employment had been terminated.
Appellant urges, however, that the owner had no right to terminate the contract. We cannot agree with this contention. If the continuation of the listing after the original 90-day exclusive period be viewed merely as an extension- of an offer to enter into a unilateral contract, clearly the owner had the right to revoke her offer.
If the 90-day exclusive sale period be viewed as a contract, with the continuation of the listing as one of its terms, then the oral agreement, testified to by the owner, operated to rescind the written contract. It is well settled that a written contract may be modified, rescinded or discharged by subsequent oral agreement; also that an express stipulation against oral modification i's n'o bar to the parties’ right to contract anew on the subj'ect, since such stipulation like any other term of the contract may be rescinded.
Next appellant argues that the trial court committed error in overruling his motion for new trial and his motion for judgment notwithstanding the verdict.
As to the motion for new. trial it has been held over and over again that action thereon is in the discretion of the trial judge, whose ruling will not be reversed except for a clear abuse of discretion.
As to the refusal to grant his motion for judgment notwithstanding the verdict appellant’s position is still weaker. Such motion cannot be granted unless as a matter of law the party against whom it is directed has at the trial so far failed to make a case that a verdict should have been directed against him.
Affirmed.
Young v. De Vito, D.C.Mun.App., 56 A.2d 558; Moore v. Burke, D.C.Mun. App., 45 A.2d 285. See also Annotation in 26 A.L.R. 784.
Cumberland Hydraulic Cement & Manufacturing Co. v. Wheatley, 9 App. D.C. 334; Lawrence v. Keokuk Steel Casting Co., 10 Cir., 162 F.2d 929; Rand v. Helvering, 8 Cir., 116 F.2d 929; Grand Trunk Western K. Co. v. H. W. Nelson Co., 6 Cir., 116 E.2d 823, rehearing denied 6 Cir., 118 E.2d 252; Willis-ton on Contracts, Rev.Ed., Vol. 2, Sec. 591, and Vol. 6, See. 1826 and 1828; Restatement, Contracts, Sec. 407.
Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 53 S.Ct. 252, 77 L.Ed. 439; Ruppert v. Ruppert, 77 U.S. App.D.C. 65, 134 E.2d 497; Hoover v. Babcock, D.C.Mun.App., 53 A.2d 591.
Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147; McSweeney v. Wilson, D.C.Mun.App., 48 A.2d 469.
Minnehaha County, S. D. v. Kelley, 8 Cir., 150 F.2d 356, 359; Hawkins v. Sims, 4 Cir., 137 F.2d 66; Aetna Casualty & Surety Co. v. Yeatts, 4 Cir., 122 E.2d 350; Baten v. Kirby Lumber Corp., 5 Cir., 103 F.2d 272. See also Aetna Insurance Co. v. Kennedy, 301 U.S. 389, 57 S.Ct. 809, 81 L.Ed. 1177.
Minnehaha County, S. D. v. Kelley, supra, note 5.