136 Va. 634 | Va. | 1923
delivered the opinion of the court.
This was a proceeding by motion by Wilson against Brown to recover $2,000.00 as commissions for the sale of a tract of timber land. There was a verdict for Wilson for $1,000.00 which he moved the trial court to set aside and to enter judgment in his favor for $2,000.00, but the trial court refused to do this, and entered judgment in his favor for $1,000.00, and he excepted, and applied for and obtained a writ of error from this court.
James Brown and Joseph Brown owned jointly the-tract of land and listed it with Wilson for sale at $8,000.00 net, and agreed to give him all over that sum. he could obtain as compensation for his services. The-listing was on a printed card furnished by Wilson and filled out and signed by the Browns. It contained the following paragraph:
“Price $8,000.00 net, terms ***** For the consideration of advertising and making reasonable-efforts to sell the same, this property is hereby listed with R. Lee Wilson, as exclusive agent, to be withdrawn at any time upon ninety days’ notice. Provided that-if sold directly through his efforts all over and above my price as above stated is forthwith due and payable to-him.”
No complaint is made of the instructions given, but the refusal to give several instructions tendered by the defendant, and refused, is assigned as cross-error.
The defendant asked for three instructions on the subject that when the terms of sale given to a real estate broker are left blank, a sale for cash is implied, and there is no authority to sell on credit. The instructions were asked in varying language, but they amounted to the same proposition, though some gave more details of the testimony than others. The court gave one of them in the following language:
“The court instructs the jury that the power to sell implies a cash sale, unless expressly authorized to the contrary, and that any extension of time of payment, no matter howsoever small, is not cash.”
An exclusive power was given Wilson to sell the land “for the consideration of advertising and making reasonable efforts to sell the land,” which it was agreed could not be withdrawn for a period of ninety days. Within the time limited, and before revocation of his powers, Wilson wrote to different persons about the land, and sent an agent to Baltimore and later to the city of Washington to interview prospective purchasers, and secured one in the latter city ready, able and willing to purchase at the owners’ price. A mistake was made by Wilson in giving the terms of sale to the purchaser. He named half cash and the balance some months thereafter. This offer he promptly communicated to the two.owners by mail on April 6, 1920. On the next day, and before the communication had been received, Wilson met James Brown, one of the joint owners, and informed him of the communication, and of the mistake made in the terms, and told him that the purchaser would pay all cash, if desired. James Brown expressed himself as gratified at the sale as “it will give me some money in my old age,” and made no objection to the terms, nor any request for all cash. On the following day, April 8, 1920, Joseph Brown wrote Wilson: “I am writing you in regards to that land we listed with you. I have bought my uncle’s interest and am not going to sell.”' The statement that he had bought his uncle’s interest was not true. Whether or not James Brown communicated the conversation with Wilson to Joseph Brown does not appear from the reeord, but shortly after April 8, 1920,. Wilson saw Joseph Brown and informed him he was ready to pay him the 18,000.00 cash for the land, but he refused to conclude the sale at that price and wanted $15,000.00
[6] “When an agency is not such as to constitute what in legal parlance is called a power coupled with an interest, and no third party’s rights are involved, the agency, so long as it remains unexecuted, may be effectually revoked at the will of the principal, but a wrongful revocation will nevertheless render him liable in damages to his agent. In other words, the agency may always be revoked, but the contract of employment will not necessarily be thereby rescinded.
“In the instant case the brokerage company’s agreement to furnish the money for the development and*640 subdivision of the land, and for the expenses of the sales, was a valuable consideration for the agreement that the brokerage company should have the exclusive right of sale for a year. And, while the agency was not coupled with such an interest as to make it irrevocable, the contract which created it was a mutual agreement between competent parties for a lawful purpose and upon a valuable consideration, with the result that neither party could violate it without becoming responsible to the other for the breach.”
To the same effect, see Rowan v. Hull, 55 W. Va. 335, 47 S. E. 92, 104 Am. St. Rep. 998, 2 Ann. Cas. 884; Cloe v. Rogers, 31 Okl. 255, 121 Pac. 201, 38 L. R. A. (N. S.) 366 and note; Alexander v. Sherwood, 72 W. Va. 195, 77 S. E. 1027, 49 L. R. A. (N. S.) 985, and note.
Instruction 4 tendered by the defendant and refused need not be recited. The trial court committed no error in refusing it for the reason stated in the last paragraph, and for the further reason that it contains only a partial view of the evidence on the subject.
“The court instructs the jury that if they believe from the evidence that Wilson and Mathers were working together and that Mathers negotiated a sale to Duvall for other than cash, and that Mathers was to be interested in the purchase with Duvall, then such violated the agency with Brown and revoked the said agency, and they must find for Brown, unless they shall further believe that these facts were fully made known to said Brown.”
The trial court committed no error in refusing this
Reversed.