Dworski v. Lowe , 88 Conn. 555 ( 1914 )

Plaintiff, a real-estate broker, was employed by defendant to find a purchaser for his farm, and as the result of plaintiff's efforts the defendant signed and delivered a written agreement, Exhibit A, to sell the farm to one Strachansky for $15,000, of which $200 was paid as deposit on the purchase price at the time of the execution and delivery of the writing. A further payment of $800 cash was to be made when the warranty deed was given, and the purchaser was to give back a mortgage for the remaining $14,000. Subsequently a dispute arose between the parties, the sale was abandoned, and the $200 deposit returned.

The trial court has found that the purchaser was ready, willing and able at all times to purchase the farm on the terms and conditions contained in Exhibit A, and that the sale was not consummated because the defendant insisted upon changing the conditions prescribed by him in Exhibit A, and not by reason of any default of Strachansky.

The defendant excepts to these findings, as made without any evidence; but it appears to us after carefully examining the testimony that the trial court was justified in reaching these conclusions of fact. The evidence is conflicting, and the testimony of the purchaser, Strachansky, taken by itself, would justify the contention that he was ready to complete the purchase only upon conditions not clearly identified in his testimony. Other testimony, however, indicates that the conditions insisted on by Strachansky were none other than those already agreed on and referred to in Exhibit A; and that the only reason why the sale fell through was that the defendant, after consulting counsel, concluded that Exhibit A did not sufficiently secure him against loss, and attempted to impose further conditions not contained in or referred to in Exhibit A.

In this condition of the record we would not be justified in sustaining the exceptions to paragraphs fourteen, fifteen, seventeen and eighteen of the finding. Moreover, the printed record indicates that the trial was peculiarly one in the course of which the court might properly have been influenced by the appearance and demeanor of some of the interested witnesses.

It is also contended by the defendant that the terms of the sale were never fully agreed on in detail. This contention is based on the fact found by the court, that a certain conditional bill of sale, referred to in Exhibit A as having been delivered to the defendant, was never in fact executed. But although no such bill of sale was executed, Exhibit A indicates that its terms had been agreed on, and several witnesses testify to the fact that a list of personal property to be included therein had been agreed on and reduced to writing before the execution of Exhibit A.

The court did not err in excluding evidence of a conversation between a representative of the purchaser and the defendant, in the absence of the plaintiff and at the time when Exhibit A was returned to the defendant after the sale had been abandoned. This conversation was claimed for the purpose of showing that the parties had never reached a complete agreement; but the plaintiff's rights could not be affected by anything which the parties said in his absence at that late day.

Defendant further relies on the claim that the plaintiff is not entitled to his commission because the purchaser did not sign a written contract to buy the farm; but the finding that the purchaser was at all times ready, able and willing to complete the purchase on the terms agreed on, and the finding that the sale was not completed because the defendant refused to sell on such terms, make it immaterial whether the purchaser was legally bound to carry out his contract or not. The broker is of course bound to find a customer who is ready, able and willing to buy on the owner's terms. If he does this, and the sale then falls through because of the discovery of a defect in the seller's title (Clark v.Thompson Son Co., 75 Conn. 161, 52 A. 720), or because the seller refuses to carry out his agreement (Notkins v. Pashalinski, 83 Conn. 458, 76 A. 1104;Home Banking Realty Co. v. Baum, 85 Conn. 383,82 A. 970), he has earned his commission. The question whether the buyer's contract is or is not enforceable at law, does not arise unless and until the buyer refuses to perform it.

There is no error.

In this opinion the other judges concurred.