Culligan v. Gomez ( 1923 )

David H.Culligan vs Widow Ernest Gomez and Al Appellants

No.8728

Charlee F.Claiborne,Judge

Ibis is a suit by a real estate agent for a commission,

It is based upon the following contract:

■ Hew Orleans La.October 8th wq 1921

I hereby appoint David H.Oulligan my exclusive agent, and Authorise him to sell my property 7816 Poplar Street for $7,760.00 or for any other less «mount which I may hereafter accept .in consideration of his efforts I give my agent- sole authority to sell thfca property for a period of — to be released Hoyember 8th-1921 without farther notice- from date .and thereafter until revoked.by 30 days previous notice to him in writing;X also bind myself to refer to my agent all prospective purchasers or other, agents who come- to me regarding this property and I further agree not to interfere in the sale of the property during, the term of this agreement.I agree to pay David H.Oulligan,my agent,a commission of 3 per cent of the total sale price,which commission shall be considered .earned when the agreement of sale is signed and deposit made by purchaser,no matter by whom the property is sold.I authorize my agent to accept a deposit of 10fa of the purchase price,said deposit to he non-interest and non-penalty bearing."

"Signed" Mrs E.J.Gómez,Owner .

The petition alleged that the defendant Mrs Gomez for herself and her coproprietors signed the above contract;that on November 4th petitioner presented to.Mrs Gomez an offer of $7600 from M. de Lucas agent;that Mrs Gomez accepted said ftffer on two conditionsslat that the prospective purchaser should make the deposit of the ten.per cent in her hands,and 2nd that xne identity pf the purchaser should be dipclosed;that petititoner complied with both conditions and notified Mrs Gomez on the same damthat the purchaser was Itr Sizer and that he would deposit the $750 in her hands;that Mrs Gomez then declined to carry out the sale;that on November 20th after the lapsing of the contract urs Gomez sold said property to the same Ur Sizer for $7600 ; that Mrs Gomez was not serious in' resect-ing the $760.0 offer,but resorted to a subterfuge to evade the er.Therefore plaintiff - * % ' payment of a commission to,petitic_____ tyvtfáC' ,P >Í ‘ claimed three per cent comm^ésion on $76Q0/vor $286 frith In#ér and costs.

The following is a letter addressed by oulligan.on November 4th;

Urs E.J.Gomez and Others

Dear Madam

Relative to your request that we.furnish you the name of the prospective purchaser who has.made us an offer of $7600 for your property No.7816 Poplar Street,.which amount you state you are willing to accept but will not do so until you assure yourself that our purchaser would not' be a detriment to the neighborhood.In compliance with this request we beg to advise you that our prospective purchaser is Mr O.L. sizer.In the event that this party should subsequently purchase the property or be instrumental in this sale,we will charge you the uewié- commission of three per cent on the sale, Complying with your further request Mr Sizer is willing to malee the deposit of ten per cent of the purchase prlee with you as exeoutrix upon receipt of the deposit you to pay us our commission of three per cent On the sale.*

The defendants admitted the oontract alleged;they admltt ed the ofrer of $7fe00 in the name^ of de Lúeas,agent and averred that plaintiff withheld the name of Sizer for the reason that petitioner fcnew that Mrs Gomez had been negotiating with Mr Sizer anc that she would not accept an offer of $7600 from him.. They denied accepting the offer of $7600.because'any of Per less than $7760 wpuld necessarily have to be submitted to all the-defendant¿.They denied that Mrs Gomez refused the offer of $7500 as a subterfuge,but aver,on the contrary,that after the expiration of plaintiff's contract,they again refused a similar offer from Sizerjand they allege"that finally,throught the efforts of one White,to whom they paid the us/Sual real estate commission,an offer,q‡ §7600 was obtained from Sizer and aceept-ed by respondents j-táj&tvoharge that de Lucas was not acting as the agent of Sizer but of the plaintiff himself with a view of securing control of the property and selling it later to. Sizer for a larger price as they knew Sizer had already made an offer of §7500.

There was judgment for the plaintiff and the defendants have appealed.

There is no preteilse that the plaintiff procured a purchaser for §7600.This purchaser was procured by White.The only pretense is,thaw plaintiff procured a purchaser for §7500 who was accepted by the defendants.Therefore he can claim a commission only upon §7500hmt the evidence was does not satisfy as that Mrs Gomez accepted the offer of §7600.

The best that can be claimed,is that when the offer of §7500 was tendered to her she expressed the intention to accept it on three conditions : First.-That the 45 days delay would bfe eliminated;Second- That the name of the purchaser would be divulged to her,and Third-That the deposit would be made in her hands.The plaintiff complied with the, first two conditions,jiut tied a string to the third condition when he tendered his check for the deposit with the following provision:

" Complying with your further request Mr Sizer is willing to matte the deposit .of 10 per cent pf the purchase price with you as executrix,upon receipt of the deposit you to pay us our commission- of three per cent on the sale.1-

This conditional compliance was not such compliance as was binding upon the defendants.

It further appears by the testimony of Mrs Gomez,as stated,and reiterated by h»r,that _er consent to accept the $7600 bid tras based upon the condition of its acceptance by her co-proprietors also.This they refused to do.

Besides no verbal acceptance was admissable against Mrs Gomez.Her counsel made timely objections» to oral testimony but was overruled.A written acceptance was in contemplation of the parties.At the bottom of Sizer’s $7600 offer to buy are the, following yof&Bt

11 The owner of the above.property,accept the above offer *nd agree to pay David H.Oulligan - % commission

Until the owners had signed this acceptance there was no Contract binding them^upon them and they could recede from 4jay pfier stipulation on the subject.S M .349-627-88 A 35-46 A ,650 Laroussini 68 A 424-106 La 310-116 La 810-144 La 927^/"^

quiere is absolutely no testimony' fastening any fraud 1 upon*>Mrp' Gomez-She rejected Sizer's offer of $7600,during plaintiff‘..s contract .and again' after his contract ara^old .exclusively through IShite's offer of $5600 made the expiration -of plaintiff's offer .No offer of $5600 had. ever been made prior to that time by Sizer.

Mrs Gomez cannot be hied for the whole commission.

-She was the-.owner of anly. one fifth of the property,and plains tiff fcnew it.She never had any authority from her Co-propietors ■ to. sell the'property for less than $7760/and never represented herself as haying such authority.Therefore she pan1be held only for one fifth' of the commission.

But as Burning that she can be held for the whole of that'.; commission,it is not possible to hold her co-proprietors. 'There is no evidence in the record,verbal or written^that any * pi the co-proprietors authorized Jirs Gomez to sell for less than. $776.0-

But even, if Mrs Gomez and her oo-proprietors .are liable^ there is ad láwmakipg them liable in solido.

It'\'i%'. tháf©flore ordered. that the judgment herein be reversed,.and .. set aside and that there now be Judgment in. favor of defendants rejecting plaintiff’s demand at his costs in both courts.