Hays v. Goodman-Leonard Realty Co. , 146 Miss. 766 ( 1927 )

^* Corpus Juris-Cyc References: Brokers, 9CJ, p. 595, n. 29; p. 596, n. 33; p. 600, n. 50; p. 623, n. 65; p. 624, n. 66, 68; p. 626, n. 77; p. 652, n. 29; p. 654, n. 40; p. 655, n. 43. On right of real estate broker to commissions where he procures customer who is ready, able and willing to accept principal's terms, see annotation in 44 L.R.A. 593; 1 A.L.R. 528; 4 R.C.L. 307; 1 R.C.L. Supp. 1113; 4 R.C.L. Supp. 262; 6 R.C.L. Supp. 249. The appellees, Alfred Goodman and John C. Leonard, doing business under the trade-name of Goodman-Leonard Realty Company, were engaged in the real estate brokerage business in the city of Gulfport, Miss., and they instituted this suit in the circuit court of Harrison county, seeking to recover a five per cent. commission on the price of certain property owned by the appellant, which had been listed for sale with the appellees. There was a verdict in favor of the realty company, and from the judgment entered in pursuance thereof this appeal was prosecuted.

The declaration alleged that the appellant was the owner of a certain lot or parcel of land fronting eighty feet on the Gulf of Mexico; that she listed it with the appellees exclusively for sale at the price of three hundred dollars per front foot, on terms of one-third cash and the balance in equal installments, payable in one, two, and three years, the deferred payments to bear interest at the rate of six per cent. per annum from date until paid; that appellees at once began to advertise the property for sale, and on the 6th day of November, 1925, while their authority to sell was still in full force and effect, secured purchasers therefor who were ready, willing, and able to buy the property on the terms named; and that they so informed the appellant, and she declined to carry out the sale solely through her own fault.

In the proof offered at the trial it is admitted that on Monday, November 3, 1925, the appellant gave to appellees the exclusive right to sell the property on the terms named in the declaration, provided the sale was made before the following Saturday, but appellant testified that on the following day she withdrew this listing of the property. Witnesses for the appellees positively denied the withdrawal of this listing of the property, and this issue was submitted to the jury, and was decided against the appellant by the jury's verdict. Consequently, for the purpose of this appeal, the agreement as to the listing must be taken as averred in the declaration and testified to by the witnesses for the appellees.

For the appellees there was testimony to the effect that the agents of the appellees secured four business men, who agreed, and were ready, willing, and able, to purchase the property on the terms named by the appellant; that on Thursday, November 5th, the appellees notified the appellant that purchasers for the property had been secured, and she was requested to come to appellees' office for the purpose of closing the deal, but she declined to do so, stating that she did not believe that she would go ahead with it; that on the following day, Friday, an agent of the appellees secured from the four proposed purchasers ten per cent. of the total purchase price, or two thousand four hundred dollars, in cash, as earnest money, and tendered it to the appellant, and requested her to consummate the sale; and that she refused to do so, saying that she was not going to sell the property, as she had made other arrangements to secure the money which she then needed. Three of the proposed purchasers were offered as witnesses for the appellees, and each of them testified that he agreed to purchase the property and put up six hundred dollars, or one-fourth of the earnest money, and that he was ready, willing, and able to purchase the property at once on the terms named by the appellant. The fourth one of the proposed purchasers, Dr. O'Deneal, was not offered as a witness, but his agent testified that he was ready, willing, and able to buy the property, and, from his general financial reputation, that he was fully able to purchase on the terms named, and on this testimony the question of whether the proposed purchasers were ready, willing, and able to purchase the property upon the terms and within the time fixed by the appellant was submitted to the jury under proper instructions. It was also testified that nothing was said to the proposed purchasers, or to or by the appellant, in regard to the payment of taxes for the current year, or the furnishing of an abstract of title.

For a reversal of this cause, the appellant relies on the ground, among other things, that the evidence fails to show that the proposed purchasers were ready and able to perform their part of the contract, for the reason that it was not shown that each of them actually had in hand the money to at once make the cash payment. In order to entitle a broker to his commission, he is only required to show that he procured a purchaser who was ready, willing, and financially able to purchase and pay for the property within the time and upon the terms fixed; and we do not think that the term "able," or "financially able," as used with reference to the financial responsibility or condition of a proposed purchaser, means that such purchaser must necessarily have in hand all the money in cash, or to his credit at a bank, but merely that he must be able to command the necessary money to close the deal on reasonable notice, or within the time limited by the vendor, if the time is limited. Upon the question of the financial responsibility of a proposed purchaser, evidence based upon the financial reputation and business standing of such purchaser is admissible, and, in the case at bar, the testimony that each of the four proposed purchasers was ready, willing, and financially able to perform his part of the contract of purchase, was undisputed, and, in our opinion, was sufficient to support a finding that they were, in fact, willing and able to purchase the property within the time, and on the terms fixed by the appellant.

The appellant next seeks a reversal upon the ground that in the listing of the property for sale, and in the agreement with the proposed purchasers, all the material terms and conditions of the sale were not fixed or agreed upon, and particularly that the terms of the sale were silent as to the kind of deed that should be executed, the manner in which the deferred payments were to be secured, the payment of taxes for the current year, and the obligation of the vendor to furnish an abstract of title to the property. Witnesses for the appellees testified, and the appellant herself admits, that when she was notified by the appellees that they had found a purchaser for the property who was ready, willing, and able to purchase upon the terms fixed by her, she informed them that she had secured a loan of such funds as she required to meet her pressing needs, and for that reason she had decided not to sell the property. This being true, the objections to the terms of the proposed sale as stated above are immaterial, as was expressly decided in the case of Lizana v.Brown Realty Co. (No. 26362), 111 So. 867, decided March 28, 1927, and not yet [officially] reported. In that case similar objections, as well as others, were urged against the contract of sale as negotiated by the broker, and the court, after setting out the various objections to the terms of the proposed sale, as made by the evidence in the court below, held that the broker was entitled to a peremptory instruction for the commission on the proposed sale, and in discussing the question said:

"In other words, a fair interpretation of the testimony demonstrates that, in refusing to consummate the contract, the appellant was controlled alone by the fact that he was not then willing to sell the property for as little as fifteen thousand dollars, and that no other consideration whatever was either controlling or influential in such refusal. Therefore the parties never reached the point of considering the question whether the appellant's wife would join in the conveyance of the property, or whether the terms of the proposed sale were satisfactory to the appellant. The consideration of those matters was cut off short by the appellant when he declined to consummate the sale because the price was not satisfactory, although he admitted that it was the price at which he had listed the property with appellee for sale. If appellant objected to the terms and conditions of the sale, he was due to point out to appellees the grounds of such objection, so as to give them an opportunity to adjust the matter between appellant and the proposed purchaser. This appellant failed to do.

The judgment of the court below will therefore be affirmed.

Affirmed.