Shoebridge v. Will C. Hartwell Realty & Insurance , 244 Miss. 630 ( 1962 )

This is an appeal from a final judgment of the Circuit Court of Harrison County, Mississippi, which affirmed a judgment of the County Court, sitting without a jury, for the sum of $1,147.50 in favor of appellee, and against appellants, Edward R. Shoebridge, Dorothy M. Shoebridge, Leonard Schultz and Helen E. Schultz. This suit grew out of a claim for an alleged brokerage commission said to have been due appellee for the sale of certain real property located in Harrison County. The declaration filed in the County Court did not allege that the property involved in the sale was listed with appellee and this fact was brought to the attention of the court. Appellee made a motion during the trial to amend the declaration so as to conform with the proof and show that the property was listed with him for sale. The judge of the county court permitted the amendment, but the amendment was never made to the declaration.

It appears from the record that one E.H. Hemphill was an agent and salesman for appellee, and that he went to Oakmont Street and called upon the owner of the property, Edward R. Shoebridge, and told him that he wanted to sell the house he was in the process of constructing, that he was a real estate agent for appellee, making certain notations on cards at the time. Mr. Hemphill testified that Mr. Shoebridge told him that he wanted to sell his home and stated "I got the impression from him that he wanted to sell the other houses but he wanted to sell 21 also." Mr. Hemphill knew Al Schultz, and was told by him that his brother, Leonard Schultz, intended to buy a house, and asked him to go about helping him procure a house for his brother. Appellee's agent Hemphill took Mrs. Al Schultz to look at several houses, two of which Mr. Shoebridge had given him information about. He also advised Mrs. Al Schultz that the home of Mr. Shoebridge was for sale, and he took her to this house. Mr. Shoebridge was leaving at the time he knocked on the door, but he asked his wife to show them over the house. After he had shown the home of Mr. Shoebridge to Mrs. Al Schultz, she advised him that she would get in touch with him again. The agent Hemphill learned later that Leonard Schultz had purchased the home of Edward R. Shoebridge. Mr. Hemphill never knew, nor had any contact with Mr. and Mrs. Leonard Schultz. Upon the trial of the case, Mr. Hemphill testified that Mr. and Mrs. Leonard Schultz neither employed him nor offered to pay him a commission. He was also asked the following question: "I want to ask you again. Did Mr. and Mrs. Shoebridge ever authorize you to sell this property for them obligating themselves to pay the commission, or either of them?" He replied: "Mr. Cook, when someone gives me information on the house to sell, the matter of commission is automatically included in that permission." This agent's testimony indicates that he knew that Mr. Shoebridge was advertising the property for sale and refused to give him a written listing. He thought Mr. Shoebridge had the property listed with other agents, and stated that Mr. Shoebridge said: "I am giving you all the same break, you are all getting the same commission." Defendants denied that Mr. Hemphill brought them together, and denied that he had anything to do with the sale of the property. They admitted that expenses of the sale were discussed and that Al Schultz thought that something should be paid to Mr. Hemphill as a friendly gesture.

At the close of the trial, appellant moved the court for a directed verdict for defendants, and after this motion was overruled and judgment entered, appellants moved the court for a new trial. The motion for a new trial was overruled and appellant appealed to the circuit court, setting out as one of the grounds on which reversal of the judgment was sought "The court erred in finding for the Plaintiffs and rendering a judgment against the defendants herein." We think appellant was correct in his contention. There is no testimony on which a judgment for conspiracy, "conspiring to deprive plaintiff of its rightfully owed commission", can be based against any of defendants. The agent Hemphill admitted he had no contract or understanding with Mr. and Mrs. Leonard Schultz, and they were not obligated to pay Mr. Hemphill a commission because of the voluntary assistance of Mr. and Mrs. Al Schultz. There is nothing in the record to show that Mrs. Edward R. Shoebridge was under any obligation to pay a commission to appellee nor its agent Hemphill. The testimony of Mr. Hemphill shows clearly that Edward R. Shoebridge was trying to sell his property himself, and had advertised in a newspaper. Taking the strongest testimony of appellee, together with all its implication as to an implied contract, it amounts to nothing more than a statement that Mr. Shoebridge would pay a commission to Mr. Hemphill if he would bring him a "deal." Mr. Hemphill did not bring a "deal", he brought Mrs. Al Schultz, and she was not an authorized agent of Leonard Schultz.

(Hn 1) This Court pointed out in the syllabus of the case of Russell v. Johnson, 126 Miss. 896, 89 So. 773, that "In order for a real estate agent to recover for services rendered a party in making a sale of real estate, there must be a contract, expressed or implied, creating the relation of principal and agent." See also Lewis v. Martin, 151 Miss. 563, 118 So. 609; Case v. Harrison, 192 Miss. 531, 6 So.2d 582; Kimbrough v. Smith,201 Miss. 202, 28 So.2d 850; 12 C.J.S., Brokers, Sec. 60, p. 134.

The textwriter in 8 Am. Jur., Brokers, Sec. 159, p. 1079, said that: "The owner must say or do something tending to prove that he accepted the broker as his agent in the matter — something more than merely selling to the party whom the broker, while acting as a volunteer, brought to him. His mere consent to the rendition of unsolicited services in effecting a sale of his property is not sufficient to justify the inference that he intends to enter into contractual relations with the broker and to pay him for his services. Nor does the mere asking and receiving of the price of property constitute the broker the agent of the owner, entitling him to commissions, although he finds a purchaser, or the owner subsequently disposes of the property to one with whom the broker had negotiated."

The testimony in this case shows that Mr. Hemphill, salesman for appellee, did not act as agent for Edward R. Shoebridge in the sale of his home. The judgment of the circuit court affirming the judgment of the county court, should be reversed, and a judgment entered here in favor of appellants.

The judgment of the circuit court and of the county court are therefore reversed, and a judgment in favor of appellants will be entered by this Court.

Reversed and remanded.

Lee, P.J., and Gillespie, McElroy, and Jones, JJ., concur.