Clark v. Ellsworth , 66 Ariz. 119 ( 1947 )

This is an appeal by plaintiff, a licensed real estate broker, from a judgment for defendant rendered by the court sitting without a jury in an action for a commission of $1,175 claimed to have been earned by plaintiff in connection with the sale of defendant's property.

Plaintiff's complaint sets up two counts. The first is upon an express contract to pay a commission (the written contract having been plead haec verba); and the second being for quantum meruit. At the close of his case plaintiff elected to stand upon the first claim for relief. It was his theory, as shown by both the pleadings and the evidence, that he had been employed by defendant to procure a purchaser and negotiate for the sale of certain of defendant's property located in Mesa, Arizona, and that as a result of his efforts under this agreement the property was sold. Therefore, due to his services rendered under the agreement, he, the plaintiff, was entitled to recover a 5% commission on the sale price thereof.

The facts show that on or about May 15, 1946, John Owens, an acquaintance of the defendant of 25 years standing, came to defendant's property for the purpose of installing the fittings for city gas. While there he inquired if the property was for sale and was informed that it was and that defendant "had anticipated selling it for $25,000" but "hadn't set a definite price on it". Thereafter, on June 1, 1946, defendant went to plaintiff's real estate office and with the representative in charge listed the property on the firm's printed form. It was understood by the parties at that time that the listing was not to be exclusive but that defendant intended to try and sell the property himself and also that he had listed it for sale with other realtors in the town. To manifest this feature of the agreement the word "exclusive" was striken from the listing form before it was signed. Plaintiff realtor then ran a blind ad in the newspaper quoting a sale price of $23,500 on the property which prompted Mrs. Owens, wife of the ultimate purchaser, to inquire of the firm which property it was that the ad had described. After being told that the ad had reference to defendant's property, Mr. and Mrs. Owens called upon defendant the following day and made a contract of purchase at the advertised price. The papers incident to the transfer were drawn by their attorney and were executed on June 11, 1946. Defendant who knew nothing of the advertisement or the purchaser's telephone inquiry to plaintiff concerning it, terminated his listings with all realtors including plaintiff as soon as this transaction was completed.

The trial court found that the plaintiff, Clark Agency, was not the procuring cause of the sale as the telephone conversation between the purchasers and plaintiff's salesman elicited nothing in the way of facts that purchasers did not already know. By law we are bound to view the facts as found by the trial court if there is any evidence at all to support such view, even though the weight of evidence may seem to be the other way. Hughes v. Cadena De Cobre Mining Co., 13 Ariz. 52, 108 P. 231. And yet the only assignment of error that we need consider here challenges these findings on the ground that they are not supported by the evidence.

There are a few cases upholding the right of brokers to recover commissions where they took no part in the negotiations, never saw the customer and some in which they did nothing except advertise the property. But an examination of these cases will show that there the broker's prior activities were found to have been the efficient cause of the sale and in each and every instance where recovery was granted, the broker was the first in point of time to introduce the purchaser to the property. Libby v. Ivers Pond Piano Co., 317 Mass. 478,58 N.E.2d 834, and cases therein cited.

Whether a broker is the procuring cause of a sale of property listed with him is, usually, a question of fact. The term "procuring cause" as used in describing a broker's activity, refers to a cause originating a series of events which, without break in their continuity, result in accomplishment of the prime objective of employment of the broker — producing a purchaser ready, willing and able to buy real estate on the owner's terms. Wilson v. Schmidt Wilson, Inc., 184 Va. 642, 35 S.E.2d 737.

In Arizona the law is well settled that a broker to be entitled to commission must have been the efficient, proximate and procuring cause of sale. Fink v. Williamson, 62 Ariz. 379,158 P.2d 159; Garver v. Thoman, 15 Ariz. 38, 135 P. 724.

"* * * the very purpose of a broker's agency is to locate and interest prospective purchasers of his principal's property. If the agency is not exclusive, the owner may sell his property to any one not found by the broker." Miller Cattle Co. v. Chambers,36 Ariz. 282, 285 P. 277, 279.

As applied to the facts of this case it certainly cannot be contended that plaintiff found the purchaser Owens, when prior to the time the listing was made with plaintiff, Owens had been dealing with the defendant for the property and stated that he "would be back to see about it". There is no evidence to show any service rendered by plaintiff's agency that would entitle him to claim that he was the procuring or efficient cause of the sale. Certainly the facts here do not even remotely suggest that the transaction was a mere subterfuge to defeat the broker of his commission. The findings of the trial court are fully sustained by the evidence.

There remains but one further point to consider. On this appeal (and for the first time) plaintiff contends that the below emphasized portion of the contract entitles him to judgment: "The above property to remain in your hands exclusively for a period of till notified and I agree to pay you 5% of the total selling price, immediately a sale is effected, whether sold by me or anyother person."

If the case had been tried upon this theory, a close question of interpretation would have arisen for the great weight of authority supports the rule that a stipulation in a real estate broker's contract promising him compensation in the event of a sale of the property by the owner himself during the life of the contract is valid and enforceable where the broker has used ordinary diligence in endeavoring to make a sale of the property. Futrell v. Reeves, 165 Ky. 282, 176 S.W. 1151; 12 C.J.S., Brokers, § 75, page 166. However, this was neither the basis of plaintiff's pleadings in which the gravaman was clearly the procuring of a sale: "* * * as a result of plaintiff's efforts, under and by virtue of the aforesaid agreement * * * (defendant) did sell said property * * *." Nor was it the basis upon which the case was tried as evidenced by this comment of the trial court at the close of the case: "I don't see how it could be held that the Clark Agency was the procuring cause of the sale. For that reason the motion of the defendant for judgment is granted." (Emphasis supplied.)

It is well settled that a question or issue not raised in the trial court will not be considered on appeal. City of Glendale v. Coquat, 46 Ariz. 478, 52 P.2d 1178, 102 A.L.R. 837; Hallenbeck v. Yuma County, 61 Ariz. 160, 145 P.2d 837; Davis v. Kleindienst, Ariz., 169 P.2d 78.

Judgment affirmed.

STANFORD, C.J., concurring.