Hunter v. Blosser ( 1916 )

Ostrander, J.‘

(after stating the facts). Defendant had title to whatever he offered to sell. No question, is raised respecting his title to the specific articles described in the inventory, and none to his title to and. ownership of his business. Plaintiff says he first made his contract of agency, then his agreement to purchase. There is no testimony tending to prove that plaintiff .produced a purchaser who would buy in accordance with the agency contract.

Plaintiff himself, the agency contract being in existence, agreed to buy, not only what the agency contract described, but more, and also the promise of the defendant vendor not to engage for five years in the immediate vicinity in a competitive business. In this contract the agent is a principal, and as such he paid $100 of the purchase price. He has not offered to perform his agreement, nor any proof that he is able and willing to do so. He sought to secure the business and property for another, who refused to take it, although it had succeeded, as assignee, to his rights.

Let it be assumed that it was understood between plaintiff and defendant that the agreement to sell and. buy which was executed was a means merely to secure a sale to plaintiff’s, undisclosed principal, the Palace^ Model Laundry Company. In this view it is. not material whether the agency agreement or the sales agreement was first made or whether they were each a part of a single transaction. The agency agreement itself bears convincing evidence that it was last prepared, because in two places therein it refers to a time limit not therein specified for making a sale. The sales agreement alone specifies the limitation.

Let it also be assumed that such a sale as defendant desired to make, and, if made, such as he was willing; to pay the stipulated commission for having made, was not made because his contract with the Dispatch Laundry Company was outstanding. Has the plaintiff earned the commission? The answer must be “No.” No act of defendant prevented the sale of his business. He had not, as the court in the charge assumed, already sold it to another. • There was no lien or incumbrance upon the business or upon the specific property agreed to be sold. It does not appear that the contract with the Dispatch Laundry Company was not a most advantageous one for the business. The purchaser proposed by the plaintiff did not wish to buy the business as it was. It is said for appellee that no laundry company would want to buy the business with this contract outstanding. But plaintiff was not limited to a sale to a laundry company. It might be argued as well that no laundry company would wish to buy a barber shop and fixtures and no barber would care to buy a laundry agency, and that, if any but a laundry concern did buy it, the contract for laundry work would be regarded as a valuable asset of the business. Defendant had a barber shop, furniture therefor, a laundry agency, and, in a way, a laundry business. That was his business. For it plaintiff has not procured a purchaser, unless he himself is to be regarded as such. A verdict should have been directed for defendant.

The judgment must be reversed, and there seems to be no reason for ordering a new trial.

Stone, C. J., and Kuhn, Bird, Moore, Steere, and Brooke, JJ., concurred. Person, J., did not sit.