Rosenfield v. Wall , 94 Conn. 418 ( 1920 )

The essentials of an action such as this, to recover a broker's commission for the sale of real estate, are the employment of the broker by the owner to sell his real estate upon certain named terms, and the procurement by the broker of a customer willing, ready and able to purchase upon these terms.Abbott v. Lee, 86 Conn. 392, 85 A. 526; Home Banking Realty Co. v. Baum, 85 Conn. 383, 82 A. 970. The difficulty in supporting the judgment is, that the facts found, upon which the appeal must be determined, do not disclose the cause of action of the complaint, nor indeed any cause of action. One ground of error, and the only one which we shall discuss, is in the holding of the court that the plaintiff was the procuring cause of the sale. Such a finding is to be regarded as one of fact and conclusive, "unless contrary to or unsupported by the subordinate facts, or in conflict with the settled rules of logic and reason, or found in violation of some rule or principle of law." Seward v. Seward Son Co., 91 Conn. 190, 193,99 A. 887.

The conclusion of the trial court that the plaintiff was the procuring cause of this sale, rests on the allegation that he found a purchaser for the property, Mrs. Brody, and gave the defendant Wall the name and address of this purchaser, and subsequently, upward of two months later, Wall sold the property to Mrs. Brody for the purchase price of $16,300.

It is not alleged that this price was a part of the terms of sale for which the plaintiff was employed to sell. It is not alleged that Mrs. Brody ever accepted these terms of sale, or was ever ready, willing and able to buy on these terms. There is no express allegation, and no facts from which it could be inferred that the plaintiff was the procuring cause of the sale. What occurred between the time when the plaintiff found Mrs. Brody and June 20th which induced, or may have induced, Mrs. Brody to make this definite offer, does not appear. How the defendant came to sell to Mrs. Brody does not appear.

From the mere fact that the plaintiff brought the purchase of this property to the attention of Mrs. Brody and that over two months later she purchased it, does not of itself furnish a sufficient basis from which the inference must necessarily follow that the plaintiff was the procuring cause of the sale. The finding of facts does state that the plaintiff was the procuring cause of the sale, but this is not supported by the subordinate facts, and this conclusion is not consistent with the facts found.

The facts found do not show that the employment of the plaintiff covered the sale of this property upon any stated terms or for any stated price. They do not show that the plaintiff ever accepted any terms or price for which the plaintiff was authorized to effect the sale. They do not show that the plaintiff interested Mrs. Brody to the point that she accepted, or was ready to accept, the terms of sale which the plaintiff was authorized to make. They merely show that during April and May the plaintiff secured from Mrs. Brody successive offers, the last one being $16,200, and submitted all of these offers to Wall, and he rejected them. And that on or about the following June 15th Mrs. Brody called to her assistance another broker and through him offered $16,300 for the property, which offer Wall accepted and subsequently consummated the sale.

The finding of a prospective purchaser is not the only service of the broker. A large part of his effort, perhaps the greater part, is in inducing either the purchaser to meet the seller's terms and price, or the seller to make concessions in the terms to meet the purchaser's wishes. In this case, so far as the finding discloses, Mrs. Brody did not purchase or offer to purchase upon terms satisfactory to the defendant, as the result of the effort or service of the plaintiff. On the contrary, it is found that another broker, at the instance of the purchaser, induced the defendant to sell the property to Mrs. Brody for $100 more than Mrs. Brody had offered him through the plaintiff. No question of bad faith on the part of the seller, or of Mrs. Brody, arises on the record. The fact that the plaintiff first called Mrs. Brody's attention to this property is not of controlling significance. Who was the procuring cause of the sale is the controlling factor. And it may or may not be the one who first called the purchaser's attention to the purchase of the property. If the prospective purchaser whom a broker introduces to the owner is not able, ready and willing to buy on the owner's terms, or his decision is not reported to the owner, and thereafter another broker procures this same purchaser to accept the owner's terms or to make an offer which the owner accepts, the first broker is not entitled to recover a commission since he cannot be said to be the procuring cause of the sale. The broker's services are not the test, but rather the success of his effort in effecting a sale, or in producing a customer ready, able and willing to buy on the owner's terms.

The employment of a broker without naming a price of sale places it in the power of the owner to reject any offer brought to him. Cadigan v. Crabtree,179 Mass. 474, 480, 481, 61 N.E. 37. An owner may, while negotiations remain unsuccessful and before the broker has produced the customer able, ready and willing to buy on the owner's terms, discharge the broker, and if the owner subsequently sell to the customer with whom the broker has unsuccessfully negotiated, the owner will not be liable to the broker for his commissions, provided he be acting in good faith and not seeking to escape payment of the commission by making the sale himself. Leonard v. Eldridge, 184 Mass. 594, 595,69 N.E. 337. "A broker who does not have the exclusive sale of real estate does not become entitled to a commission merely by bringing the property to the attention of the person who finally buys it, but he must also show that his services were the efficient or effective means of bringing about the actual sale. . . . One may have found the customer who otherwise would not have been found, and yet the customer may refuse to conclude the bargain through his agency; and another broker may succeed where the first has failed." Whitcomb v. Bacon, 170 Mass. 479, 481, 482, 49 N.E. 742. The situation presented in Earp v. Cummins, 54 Pa. 394,397, is that here, and the Supreme Court of Pennsylvania thus states the rule governing that situation: "But if the services of the broker, whatever they be, fail to accomplish a sale, and several months after the proposed purchaser has decided not to buy, he is induced by other persons to reconsider his resolution, and then makes the purchase as the consequence of such secondary or supervening influence, the broker has no right to a commission." See also Higgins v. Miller,109 Ky. 209, 213, 58 S.W. 580; Carper v. Sweet,26 Colo. 547, 548, 59 P. 45;9 Corpus Juris, pp. 599, 611, 618; 19 Cyc. 261.

The plaintiff did not have the exclusive sale of this property, and upon the facts found cannot be held to be the procuring cause of the sale. If his bringing of Mrs. Brody to the attention of the owner may be said to be one of the causes leading to the sale, Pierson's services must also be said to be one of the causes. And between these two causes it would be the duty of the trier to say which was the efficient or effective one which the procuring cause of the sale. The facts so far as they appear, show that the plaintiff was not, but that Pierson was, the procuring cause of the sale.

There is error, the judgment is set aside and a new trial ordered.

In this opinion PRENTICE, C. J., and BEACH, J., concurred.