Fortner v. Connell , 367 Mich. 146 ( 1962 )

367 Mich. 146 (1962) 116 N.W.2d 37

FORTNER
v.
CONNELL.

Docket No. 63, Calendar No. 49,467.

Supreme Court of Michigan.

Decided July 2, 1962.

Murray & Murray (Henry C. Murray, of counsel), for plaintiff.

Colombo, Colombo, Colombo & Vermeulen, for defendant.

SOURIS, J.

This is a suit for a $5,000 real-estate commission based upon a letter to plaintiff from defendant's decedent, Richard Connell, Jr., in which Connell set forth his agreement to pay plaintiff the commission "upon the date of consummation of the deal." The deal referred to in the letter was contained in a preliminary agreement of purchase executed by Connell and the prospective purchasers on the same day in January of 1957 on which plaintiff was given the letter by Connell. That preliminary agreement of purchase provided for consummation of the sale by payment of $75,000 down and the execution of a land contract, on specified terms, within 30 days after delivery of an abstract of title or title policy showing seller to have marketable title.

From the record it appears that the prospective purchasers took possession of the property in April, that in June they and Connell rescinded the deal by execution of a written "mutual release," and that Connell refused payment of the commission to plaintiff on the ground that the deal had not been consummated. At trial, defendant was not allowed by the judge, who tried the case without a jury, to introduce evidence that the down payment on the purchase price called for by the preliminary agreement had not been paid, nor was defendant allowed to introduce evidence of Connell's efforts to complete the sale. Apparently, as appears from the trial judge's written opinion awarding plaintiff his judgment, the trial judge concluded that plaintiff became entitled to his commission upon execution by the prospective purchasers and seller of the preliminary agreement in January and that no evidence of events subsequent thereto could be admitted to vary the legal effect attributed to it.

It was error to exclude evidence such as defendant sought to introduce. Plaintiff's right to be paid a commission in accordance with the terms of his agreement with Connell was expressly conditioned upon "consummation of the deal." Unlike the recent case of Cunningham v. Garber, 361 Mich. 90, because of the exclusion of evidence offered, we cannot say from this record that failure of consummation of the deal was or was not the fault of Connell.^[*] Nor, for the same reason, can we even say with any certainty, on the basis of this record, that the deal was or was not in fact consummated in accordance with the preliminary agreement. The mutual release, admitted in evidence, does not disclose at what point in the transaction, or for what reason, the deal was rescinded.

This suit does not involve a broker's listing agreement by which a commission is payable upon the broker's merely providing a purchaser ready, willing, and able to buy on the seller's terms. Nor does it involve an agreement by which payment of the commission is conditioned upon a future event within the control of the broker such as was involved in Tyson v. Herrle, 354 Mich. 298. It does involve, however, an express condition that the deal be consummated as stated in the preliminary agreement, and that required a down payment by the purchasers of $75,000 and their execution of a land contract on specified terms. Whether that condition was performed and, if not, whether its failure of performance was due to any fault of Connell or of plaintiff, goes to the heart of plaintiff's case and defendant's defense. In the absence of specific provision for forfeiture by either party to the preliminary agreement by which the obligations of the parties are limited, as was involved in Kolodziejczak v. Bak, 220 Mich. 274, it was relevant and material to the issues here involved to determine whether Connell or plaintiff was responsible for failure to consummate the deal.

Reversed and remanded for new trial. Costs to appellant.

CARR, C.J., and DETHMERS, KELLY, BLACK, KAVANAGH, OTIS M. SMITH, and ADAMS, JJ., concurred.

NOTES

[*] We have hell that where a condition precedent to payment of a real-estate broker's commission fails to occur because of the seller's action or inaction, the broker will not be denied his commission. Greenberg v. Sakwinski, 211 Mich. 498, and Hayes v. Beyer, 284 Mich. 60.