Jenny v. Smith-Powell Realty Co. , 125 Miss. 608 ( 1921 )

Sykes, J.,

delivered the opinion of the court,

The appellees as real estate agents brought suit by attachment in the chancery court for the recovery of two thousand dollars, a commission claimed to be due them bv the defendant under a contract whereby they were employed to sell a plantation, belonging to the defendant. A demurrer was interposed to the bill, overruled by the chancellor, and this appeal is here prosecuted to settle the principles of the-cause.

The material averments of the bill, briefly stated, are as follows: It alleges the execution of a written option contract for the sale of these lands and the personal property, which contract is made an exhibit to the bill. In this option contract the- terms and conditions of the sale are fully stated, and in this contract a commission of 5 per cent, for sale is agreed to be paid by the appellant. The recited consideration of the contract is one dollar, and it is only signed by appellant, and its life was only for one month.

The bill then alleges in substance that this option contract after its expiration was renewed by the appellant by letter, a copy of which letter is made an exhibit to the bill. It is then averred that certain correspondence was had between the parties to this suit relating to the sale of this property and the terms of sale; copies of these letters being made exhibits to the bill. Without setting forth in detail the contents of these letters, suffice it to say that appellant at one time wanted eighty-five dollars an acre as a walkout proposition, or seventy-five dollars an acre for the land. That the appellees in one letter to appellant stated that they thought they could sell the land for sixty-five dollars an acre and wanted to know if appellant would sell for this price and pay them a commission out of this .money. In reply to that letter the appellant offered to sell the land for sixty-five dollars net per acre, specifying in this letter, dated October 15, 1919, the terms of sale on which he would make the deal and that he would give possession on December 1st. Again on October 23d, by letter, in response to a telegram from the appellees, the contents of which is not shown in the record, the appellant states:

“I am depending on you to sell the farm. If the cash payment is a difficulty, I am willing to reduce my require-inent to ten thousand dollars cash. And if there arises-any difficulty over, the sixteenth section land in a deal on the whole place at my price, I am willing to make any adjustment considered right by those who are competent to say. I had thought that the price named there would not be any difficulty, for I took everything into consideration when I put-that price on. However, get an offer and close at price if you can. . . . Go ahead and I shall do nothing before consulting you fully.”

The letter then goes on to specify how he would prefer to sell the personal property, etc., but that he prefers a walkout deal. In this letter he also says that he prefers for the appellees to sell his land on a straight commission basis. The letter winds up as follows:

“1 would like to see you sell it; and as the matter now stands I think you are entirely free to act — for I guarantee you full protection and shall do nothing until you have had the month out anyway and not thereafter until I have consulted you fully on the matter.”

Attached to this letter is an itemized price list for the personal property. The bill alleges that partly by correspondence and partly by verbal negotiations the appellant agreed to. pay appellees a commission of 5 per cent., but that it was .finally agreed between them to pay a commission of two thousand dollars for a sale of the land. The bill alleges that on the 29th day of October, 1919, the ap-pellees produced and presented to the appellant a buyer for said tract of land, who was ready, able and willing to buy the same and to comply in all respects with the terms and conditions of such sale; that this prospective buyer was ready and willing to execute such contract as should be required of him for the consummation of the sale and purchase of the land and to make the necessary cash payment. It is the contention of the appellant in this case that the terms of sale are not specified in the bill and exhibits thereto, and therefore no' commission is recoverable, unless an actual sale has been consummated or the purchaser has entered into a binding contract of sale with the real estate broker. The allegations of the bill when considered with the exhibits thereto specify the terms and conditions upon which the broker could sell the land. The original terms contained in the option contract were modified by the subsequent letters of the appellant, but from a consideration of all of these exhibits we are of the opinion that the terms upon which the appellees could sell the plantation are therein sufficiently alleged. The bill does not allege which proposition of sale the buyer was willing to accept; that is, whether he was buying the real estate and personal property or only the real estate. The bill, however, alleges that a commission of two thousand dollars was agreed upon between the parties; consequently it would be immaterial whether only the land or the land and personal property both were to be sold. The rule applicable to this case is thus stated in Johnson v. Sutton, 94 Miss. 544, 556, 49 So. 970, 971:

“Where the contract between the broker and his principal specifies the terms upon which the land is to be sold, the broker has performed his duty and is entitled to his commissions when he produces a purchaser ready and willing and able to buy upon the terms specified; but where the terms are not specified, and the actual sale is to be made by the .principal, ... his duty is hot performed until he produces a purchaser to whom the principal sells.”

In this case the terms upon which the land was to be sold are- specified in the bill and exhibits thereto, and the brokers performed their part of the contract when they produced a purchaser ready, able, and willing to buy upon the terms specified. The decree of the lower court is affirmed, and the cause is remanded, with leave to the appellant, defendant in the lower court, to answer the bill within thirty days after the mandate of this court reaches the lower court.

Affirmed and remanded.