133 P. 52 | Okla. | 1913
On March 20, 1909, plaintiffs sued defendant before a justice of the peace in and for Perry township, Noble county, seeking to recover $100 commission alleged to have been earned in the sale of defendant's farm to one S. H. Choate. Upon trial being had, and the jury failing to agree upon a verdict, by stipulation of the parties the action was transferred to the county court of said county, where judgment was afterwards rendered for defendant, and plaintiffs bring the case here for review.
Plaintiffs, who resided at Billings, Okla., were engaged in the real estate business, and employed as their agents at Enid, Okla., Bailey Scifres, another real estate firm, whose duty it was to secure prospective purchasers, and either bring or send them to Billings, from which place plaintiffs would take them to see such property as they had listed for sale. The evidence discloses that defendant's farm was listed for sale with plaintiffs, at a net price of $5,500, they to have as commission, in event of sale through their efforts any amount obtained over and above said sum; that during the last week of October, 1909, Scifres, one of the agents of plaintiffs, brought Choate from Enid to Billings, and after having secured a buggy and team took him to visit and look over certain farms in what was known as the Antelope Flats, in which vicinity was located the farm of defendant; that Wheelan, one of the plaintiffs, *525 joined them on the road south of Billings; that after having looked at several farms, and while passing along the roadway contiguous to the farm of defendant, Choate noticed and called attention to a sign on said farm, reading, "This place for sale for $5,500.00," and remarked, "This place looks good to me at $5,500," whereupon Wheelan told him that he had the farm listed for sale at $5,600. There is material conflict in the testimony as to the actions and statements of plaintiffs, in regard to their efforts to sell said farm, but taking that of the defendant as true — since the jury did so — it is plain that plaintiffs did not mention, prior to the time that Choate saw the "for sale" sign, the fact that they had it listed for sale; and, further, that they made no endeavor to sell it to him. He was not introduced to the owner, nor was any offer made to take him on the land for an inspection thereof. In fact, there is testimony showing that they discouraged and tried to prevent the purchase of defendant's land by Choate, and that Scifres told him:
"You see cottonwood trees over there at the south side. Quite a big ditch comes in there, cuts it in two. It isn't as good as it looks."
Choate was then driven back to Billings and returned to Enid, without having made a purchase through plaintiffs' agency. Three days afterwards he came back, and independent of the plaintiffs negotiated and consummated the purchase of said farm from the defendant.
The sole contention of counsel for plaintiffs in error is that the evidence shows that they were the procuring cause of the sale, evidently basing their argument upon the fact that Choate would probably not have seen the "for sale" sign, or have entered into negotiations with the defendant for the purchase of his farm, except for the services of plaintiffs in bringing him from Enid to that vicinity, and in driving along the roadway contiguous to said farm. We think this position untenable.
To be the procuring cause of a sale, the broker must first call the purchaser's attention to the property, and start negotiations *526
which culminate in the sale thereof. Ware v. Dos Passos,
This conflict of testimony was decided in favor of the defendant, so that it is evident plaintiffs' services did not come within the above definition, as they were not the first to call Choate's attention to the farm, that being done by the sign erected by the defendant; nor did they start negotiations which culminated in the sale thereof. It was a question of fact, for the jury to determine, whether plaintiffs were the procuring cause of the sale. Reed v. Young,
Nation v. Harness,
"Mr. Austin was not ready or willing to purchase the property upon Mrs. Duval's terms when presented to her by appellee. And as appellee was not the procuring cause of Austin's readiness and willingness to purchase when the sale was effected, Hampton being the efficient and procuring cause, the evidence does not sustain the judgment, and it is reversed and the cause remanded."
Counsel for plaintiffs in error cites and relies upon the case of Roberts v. Markham et al.,
"If, after the lot or realty is placed in the agent's hands for sale, it is brought about, and procured by his advertisements or exertions, he will be entitled to his commission, or if the agent introduces or discloses the name of the purchaser to the vendor for such purpose, and through such introduction or disclosure negotiations for the sale of the property are begun, and then effected by the vendor, the agent is entitled to his commissions."
In that case plaintiffs were shown to have brought about and procured the sale through their exertions; in other words, that they were the procuring cause of the sale. In the instant case plaintiffs failed to bear this burden of proof, and therefore the contention of counsel must fall.
Other cases involving the right of brokers to recover commissions for the sale of real estate, and laying down the rules to be followed in such actions, have been decided by this court. Plaintiffs, however, have not brought themselves within the requirements of such rules, as will be seen by a brief review of the cases.
Plotner v. Chillson Chillson,
"It is a condition precedent to the right of an agent to the compensation agreed to be paid him that he shall faithfully perform the services he undertook to render. * * * "
In the present case, plaintiffs cannot be said to have faithfully performed the services they undertook to render, when the evidence shows they discouraged the purchase of defendant's farm by Choate.
In Birch v. McNaught,
"To entitle McNaught to recover, the burden of proof was upon him to show that he had found and produced a person who was ready, willing, and financially able to make the purchase of the property at the price within the time and upon the terms fixed by Birch. 23 Am. Eng. Enc. of Law, 914; Lockwood v.Halsey,
See, also, on this point, Crutchfield v. Webster et al.,
In Scully v. Williamson,
"The evidence fails to show that the sale contracted for between defendant and Remund was ever consummated; but it is said in Kalley v. Baker,
The case of Gilliland v. Jaynes,
"In order for a real estate agent to recover his commission for making a sale which has not been completed, it is necessary for him to find a purchaser who is ready, willing, and able to buy, and to procure a written agreement to buy from the purchaser, which will be enforceable against him, if accepted and signed by the seller, provided the seller and purchaser have not come together and an oral agreement to buy accepted by the seller."
To recover the commission sued for it was imperative that plaintiffs show that they were the procuring or efficient cause of the sale, and, having failed to establish such fact, the judgment of the trial court was correct. Nation v. Harness etal.,
For the reasons given the judgment should be affirmed.
By the Court: It is so ordered.