125 Ky. 837 | Ky. Ct. App. | 1907
Opinion op the Court by
Reversing.
On December 23, 1905, John Caddell executed to R. L. Pope the following writing: “I hereby authorize R. L. Pope to-'sell my dwelling and store house for-two thousand ($2,000.00) dollars cash and stock of goods at cost per invoice, and allow him ten per cent commission on sale of goods alone, also any commission over two thousand ($2,000.00) dollars.for which he may sell dwelling and store house. Void after January 10, 1906. John Caddell.” On January 11, 1906, Pope filed this- suit against Caddell. In his petition, after setting out the written contract, he alleged that pursuant to it and prior to January 10, 1906, he. made a contract for the sale and delivery of the stock of goods to E. E. Prichard, which would have invoiced at cost $800; that he contracted for the sale of the store to E. E. Prichard for $500, and contracted for the sale of the dwelling house and lot to Sam Mahan for $1,800, or $2,300 for both properties; that after he had procured purchasers, and they were ready and willing and able to comply with the terms of the. sale and to accept the properties and pay the purchase money therefor, the defendant,- in violation of his contract, refiised to carry out the contract of sale ' as made by him, and that the sales had not been consummated solely by reason, of the defendant’s refusal to perform his part of the contract. ■ The circuit -court
The objection to the petition seems to have been that it shows only a verbal contract on the part of the purchasers for the property referred to, and does not show a binding contract on their. part upon which Caddell could maintain an action against them. There is no doubt that, if the purchasers of the real estate had declined to enter into a written contract, Caddell would not have been bound for commissions to Pope. But, if they were ready, willing, and able to do so and Caddell refused to carry out the terms of the contract on other grounds, and thus prevented them .from entering into a written contract or thus waiving -the writing, a different proposition is presented.;, for it would have been an idle form for them to prepare and execute -.writings when Caddell had repudiated the whole matter. The law does not require a man to do an idle thing, nor will it permit a man to reject a proposition on other- grounds and then deny the agent his commissions because that was not done which he at the time-by his conduct waived. In Holden v. Starks, 159 Mass. 503, 34 N. E. 1069, 38 Am. St. Rep. 451, the court, in a case like this, said: “It was proved, and not disputed, that the plaintiff made a contract of sale of the defendant’s house and lot to one who for a long time afterward was able, ready, and willing to take the property and pay for it the price agreed, and who was prevented from doing so by the defendant’s refusal to carry out the contract. A payment of part of the purchase money was made to' thl plaintiff, with the intention- of- thereby, rendering the contract irrevocable. If the plaintiff was authorized to make the sale as agent employ ed'-by the defendant,, he is,, under •
Judgment reversed, and cause remanded for further proceedings consistent herewith.