Aрpellees, E. A. Audette and Henry Seay, brought suit against appellant, W. W. Chambers, Inc., for a brokerage commission allegedly due for obtaining a ready, willing, and able purchaser for Chambers’ property. After a jury verdict, the trial court entered judgment in favor of the broker-appellees for $18,500. Appellant seeks to set aside the verdict essentially on the ground that the trial court erroneously instructed the jury to disregard the fact that Chambers, as owner, already had sold the property by the time that Messrs. Audette and Seay, brokers, came forward with a buyer and claimed the commission.
Under the circumstances, we affirm the judgment. This case does not concern the usual broker-seller relationship where prior sale of the property might be determinative. In any event, appellant did not give the trial court an adequate basis for instructing the jury on the legal theory advanced on appeal. Thus, perceiving no miscarriage оf justice on the record here, we are obliged to leave the judgment undisturbed.
I.
By letter of July 25, 1972, W. W. Chambers, president of W. W. Chambers, Inc., which conducts a funeral business, authorized Henry Seay, a licensed real estate broker, to offer for sale the company’s real property located at 3072 M Street, N. W. More specifically, Mr. Chambers entered into a nonexclusive listing arrangement, apprising Mr. Seay that the company would “consider a contract” for $375,000. The parties thereby created the normal brokerage agreement under which the prospective buyer is to make the offer, subject to acceрtance by the seller.
Almost a year later, in June, 1973, Ralph Borden, a salesman for E. A. Audette, a real estate broker associated with Mr. Seay, showed the property to Zweites Deutsches Fernsehen (ZDF), a German television corporation. On June 14, Werner Schaefer, a local operations manager for ZDF, sent a letter to Mr. Borden expressing interest in the property. Mr. Borden informed Mr. Chambers of ZDF’s interest.
On June 22, 1973, Mr. Chambers wrote a letter to Mr. Borden offering the property to ZDF either for $375,000 in cash or for $360,000 payable over five years at llh% interest, provided that acceptance by either mode of payment was forthcoming by July 5, 1973. 1
Unbeknownst to Messrs. Borden, Au-dette, or Seay, the Chambers company had previously contracted, on June 18, 1973, for *13 sale of the very same property to National Savings and Trust (NS&T). That contract was conditional, however, upon certain feasibility studies and approvals.
On July 5, 1973, Mr. Schaefer sent аn acceptance on behalf of ZDF to Mr. Chambers both by telegram and by hand-delivered letter. 2 Thereafter, Mr. Chambers informed ZDF that his company no longer could sell the property because it already had been sold to another party. (NS&T had decided to accept the conditional contrаct of June 18 and had communicated its firm acceptance on July 2, 1973.)
ZDF sued W. W. Chambers, Inc., for specific performance. During the pendency of that action, however, ZDF acquired the property for $400,000 in settlement of litigation over the property against NS&T. ZDF accordingly modified its claim against the Chambers сompany to one for damages. The trial judge in the ZDF-Chambers litigation could find no effective acceptance of the Chambers offer in ZDF’s July 5 letter and telegram. Accordingly, finding no contract of sale, he entered judgment for defendant W. W. Chambers, Inc.
In September, 1973, Messrs. Audette and Seay commenced the рresent action against W. W. Chambers, Inc. for the brokerage commission allegedly due for procurement of ZDF. 3 The jury returned a verdict for plaintiffs, finding defendant liable for $18,-500. Defendant W. W. Chambers, Inc., has appealed.
II.
Although appellant has raised a number of contentions on appeal, only one merits extended discussion. 4 Appellant *14 Chambers asserts that the July 2 sale of the property to NS&T was an effective termination of its brokerage arrangement with appellees, Audette and Seay, and thus negated the possibility that these brokers could accomplish a sale to ZDF and earn the promised commission. A background discussion of the law applicable to such commission arrangements is therefore required in order to test appellant’s argument.
In general, when a seller executes a listing agreement authorizing a broker to make property available for sale on specified terms, the broker accomplishes the task and earns the commission when he or she procures a purchaser ready, willing, and able to buy on those terms.
Sorivi v. Baldi,
D.C.Mun.App.,
Commonly, a broker-seller relationship is terminable by sale of the property directly by the owner or by another broker. Upon such a sale, the determination of “[w]hether or not [the broker-agent’s] authority ceases without notice tо him, depends upon the previous or contemporary manifestations of the principal. . . . ” Restatement of Agency, Second § 106, Comment c (1958). Ordinarily, absent “evidence to the contrary, it is inferred that the agent’s authority does not terminate until the agent has notice of the accomplishment of the result.” Id. Such evidence to the “contrary,” if any, will be found in the nature of the relationship and all other “manifestations of the principal to the agent.” Restatement of Agency, Second, supra § 106.
If the agency relationship is general in character (/. e., open-ended, extending to sequential or multiple transactions) and/or runs exclusively to one broker, such characteristics manifest an understanding that notice is required for effective termination of commission rights.
Bonn v. Summers,
Given this doctrinal framewоrk, we turn to the facts of this case.
III.
It would appear that the initial, open listing brokerage arrangement between the appellant and appellees fits neatly within the nonexclusive, limited-agency category of the Trimmer v. Ludtke, supra, line of cases. Ordinarily it would follow, as appellant contends, that the arrangеment was terminated (and the right to a commission extinguished) by the July 2 sale to NS&T, despite appellees’ ignorance of that sale. On close examination, however, we find that in the other “manifestations of the principal” there is evidence of an intent contrary to that ordinarily inferred in the case of a nonexclusive, limited agency.
When Mr. Chambers notified Audette’s salesman, Mr. Borden, on June 22 that the Chambers company would “make available the purchase” to ZDF for $375,000 in cash or $360,000 over time if accepted by July 5, 1973, the company thereby changed the terms of the original brokerage agreement wherein Chambers, as wаs customary, had merely authorized solicitation of offers which Chambers reserved the right to accept. Appellant Chambers, in fact, itself points out (see note 1, supra) that in the June 22,1973, letter, Chambers reversed the normal contractual sequence by extending a specific offer to ZDF.
The trial judge essentially based his instructions tо the jury on this premise. He thus instructed the jury to focus on the question whether ZDF had been a ready, willing, and able buyer that unconditionally accepted the Chambers offer; if so, appel-lees satisfied their brokerage duties and as a result, were entitled to a commission. He further instructed, consistent with this premise (and in the аbsence of any evidence of notice), that the prior sale to NS&T was of no consequence to the determination of Chambers’ liability for the brokerage commission.
Prior to submission of the case to the jury, during the colloquy over proposed instructions, appellant’s counsel objected to this latter instruction, essentially arguing that it was surplusage detracting from the critical question whether ZDF’s acceptance had been unconditional. He did not, however, specifically argue to the trial court that the instruction was invalid on the ground that the prior sale could have revoked the agency without noticе. He did not even allude to the revocation issue, let alone ask that the jury be instructed to determine whether the Chambers company, in its June 22 letter (or otherwise), did — or did not — manifest an intention that termination of the agency, and thus revocation of commission rights, would depend on notice of any prior sale.
Had appellant not only objected to the court’s instruction about the irrelevance of the prior sale but also requested an instruction on the revocation issue — including the impact of the prior sale, without notice, on appellant’s commission rights — the court might have been obliged to submit that issue to thе jury. Absent such a request however, we are left to evaluate whether failure to give such an instruction amounted to a “miscarriage of justice.”
See
Super. Ct.Civ.R. 51;
Bullock v. Young,
D.C.Mun.App.,
In making that evaluation, we focus primarily on the June 22 modification of the brokerage agreement specifically оffering the property to ZDF through appellee Au-dette (implying an exclusive brokerage arrangement), coupled with the rule of construction that unless there is evidence to the contrary, it is proper to infer that notice of a prior sale is required for termination of the broker’s authority. See Restatement of Agency, Second, supra. In our view, the rеcord fully supports a conclusion that such prior notice was required. Thus, we cannot discern the miscarriage of justice necessary to hold the trial court’s instructions erroneous, absent a specific, relevant objection.
We affirm the judgment of the trial court.
Affirmed.
Notes
.The June 22, 1973, letter read as follows:
RE: Property — 3072 M Street, N. W.
Dear Mr. Borden:
I have reviewed with interest the letter from Mr. Werner Schaefer, Operations Manager, West German Television 2, Washington, D.C., re the above property.
I will make available the purchase under the following terms:
1. Cash sale price: $375,000.00.
2. Time purchase price: $360,000.00— $100,000.00 at date of conveyance. We will hold a $260,000.00 first trust to be paid interest only, payable quarterly at the rate of seven and one-half per cent per annum (7‘/2%). Principal to be due and payable in full five years (5) from date of settlement.
3. Acceptance of one of the above terms by not later than July 5, 1973.
Very truly yours,
W. W. Chambers
President
. In relevant part, Mr. Schaefer’s letter of July 5, 1973, read as follows:
RE: Property — 3072 M Street
Dear Mr. Chambers:
Responding to your letter of June 22, 1973, addressed to Audett [sic] Realty, attention Mr. Ralph Bordеn, we, ZDF — a German Television, are pleased to exercise the option which you extended to us to purchase the above property. We will accept your terms: Cash sale price: $375,000. Since another of your terms was acceptance by not later than today’s date, you may considеr this letter as our fulfillment of your time requirement.
******
There is only one thing in this transaction which gives us some hesitancy. We have no intention of modifying or remodeling the property. We like its design and feeling and will be pleased to have it remain as it is. However, we naturally will require some interior rearrangement, etc. to suit our own requirements and hopefully assume the Zoning and Fine Arts Commissions, and more particularly the Georgetown Fine Arts Commission, will extend all necessary approvals.
Sincerely,
Werner Schaefer
Operations Manager
. W. W. Chambers initially was named individually as a defendant; he later was dismissed from the suit.
. Appellant Chambers’ additional arguments are: (1)
the June 22, 1973, letter from Chambers modified the principal-agent relationship, with the result that the broker’s duty became obtainment of an acceptance and not merely a ready, willing and able buyer. ZDF’s letter did not contain the required acceptance.
We agree with appellant that the June 22 letter contained an “offer,” and that ZDF had to accept that offer unconditionally to become a ready, willing, and able buyer entitling the broker-appel-lees to a commission. The jury, however, was properly instructed as to the elements of acceptance; the ready, willing, and able purchaser requirement; and the necessity that ZDF’s July 5 letter be an actual acceptance. The jury found that there was an acceptance by ZDF, and the evidence was more than adequate to sustain that finding.
See
text at Part III,
infra.
(2)
Appellees did not prove that ZDF was a “financially able" buyer.
Although we doubt that the burden of proving the prospective buyer’s financial ability ought to be placed upon a plaintiff-broker, particularly when objections to or questions about solvency are not raised by the seller at the time that the prospective buyer is proffered,
see Dotson v. Milliken,
27 D.C.App. 500, 515-16,
aff’d,
. This general rule of revocability by sale withоut notice is subject to a good faith limitation. Sellers cannot effectively revoke an agency with the very purpose of defeating a broker’s impending commission.
Wood v. Hutchinson Coal Co.,
. But see Romine v. Greene, supra (notice is required unless there is no reasonable opportunity for notice between the time of sale and the subsequent broker’s proffer of a ready, willing, and able purchaser).
. Super.Ct.Civ.R. 51 provides, in part, as follows: “No party may assign as error the giving [of] or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.”