Speer v. Benedum-Trees Oil Co. , 239 Pa. 180 ( 1913 )

Opinion by

Mr. Justice Potter,

The plaintiff brought this action to recover a commission as a broker for effecting the sale of certain oil properties for the defendant. He based his right to compensation upon an agreement, under which in case he made sale of the properties for the sum of one million dollars to one T. N. Barnsdall, he was to receive for his services twenty-five thousand dollars in notes of the purchaser, running for a period of nine months. That such was the agreement is admitted by the defendant. In his statement of claim plaintiff alleges that he did effect the sale of the properties for the sum of one million dollars, to the said Barnsdall upon terms which are set forth in the paper attached to the statement, marked Exhibit B, and he further alleges that the proposition as set forth in the paper was duly accepted by Barnsdall, but that after the execution of the contract of sale between the defendant company and Barnsdall, the parties to the contract modified the terms thereof, and completed the sale for the sum of nine hundred thousand dollars. If these averments were true, the plaintiff was entitled to his commission. In the affidavit of defense filed by defendant, it was, however, alleged that the plaintiff had represented to the defendant that T. N. Barnsdall had authorized him, the said plaintiff, to purchase the interest of defendant in the oil properties, for one million dollars, and that solely by reason of such representation, and in consideration of the sale -being, made at that price, and upon condition that Barnsdall should ratify the action of plaintiff in that behalf, defendant agreed to pay plaintiff the commission of twenty-five thousand dollars. But that two days later when said Barnsdall learned of plaintiff’s action, he refused to ratify it, and stated that plaintiff had acted without authority, and he, therefore, refused to sign the agreement to purchase, and never did buy the properties at the price of one million dollars. That plaintiff then abandoned his effort to make the sale, but thereafter on February 26, 1907, through another person, defendant sold its interest in the oil leases, for the sum of nine hundred thousand dollars.

A distinct issue of fact was thus presented, as to whether or not plaintiff did sell the properties for one million dollars. If he did not make the sale at that price, he was not entitled to recover, unless the failure to sell was owing to some fault of the defendant company. The trial judge seems to have misapprehended the precise point in controversy, which was whether or not the plaintiff earned his commission by effecting a sale upon the only terms prescribed to him. The case was submitted to the jury apparently upon the theory that, the plaintiff brought the parties together, and should, therefore, be paid a commission, even though there was no sale at the stipulated price, but a later sale at a modified price. We can find nothing in the evidence to justify the submission of any such question to the jury. As a matter of fact the plaintiff did not bring the parties together; the testimony shows that they had been jointly interested in the properties for a year, and each had been endeavoring for some time to buy out the interest of the other. The efforts of plaintiff were directed towards bringing to a successful issue the pending negotiations. If he succeeded in doing so, upon the terms set forth in the paper Exhibit B, attached to the statement of claim, he was to have the commission as set forth, in Exhibit A. But an examination of the paper Exhibit B, upon which plaintiff bases his right to recover, shows that it did not constitute a sale. It was, by its terms merely an offer to sell, and it was never accepted by Barnsdall to whom it was addressed. The other letter, which apparently preceded it, identified as Exhibit'D, which was signed by Barnsdall, did authorize plaintiff to purchase defendant’s interest in the oil properties for the sum of one million dollars, upon terms indicated, but it contained this significant qualification: “The above proposition is made subject to a thorough examination by me, and acceptance of the property.” Then apparently came the letter written by the vice president of the defendant company, identified as Exhibit E, dated February 9, but which the testimony indicates should have been dated February 11, beginning as follows: “Confirming my conversation with you of this .date, we hereby accept the proposition of T. N. Barnsdall to purchase our interest in the Illinois oil fields, known as Benedum-Trees property, in which T. N. Barnsdall is jointly interested, for the sum of $1,000,000. Subject to his investigation of the property.” The uncontradicted testimony of Barnsdall is that as a result of his investigation, he came to the conclusion that he would not take the properties at the price of one million dollars, and he refused to do so. That action clearly ended plaintiff’s' right to claim his commission, under the agreement. His services failed to bring about the sale at the stipulated price. As we said in Kifer v. Yoder, 198 Pa. 308, “It is always incumbent upon a broker seeking to recover a commission, to prove either that a sale was made to the party whom he procured as á purchaser, or that the purchaser was able and willing to- buy, and the failure to make an actual sale was through no fault of the broker or his customer.” Manifestly the plaintiff in this case did not show that his purchaser was willing to buy at the fixed price. It makes no difference that afterwards the matter was taken, up through, another intermediary, and the same parties came to an agreement for the sale of the properties at a less price, in which it was stipulated that no commission should he paid by defendant company to anyone. With that transaction the evidence shows that plaintiff had nothing to do, in so far as the defendant was concerned. It was a separate transaction conducted by Mr. Richards, in which he testified that he did not act for Mr. Speer, the plaintiff. Nowhere in the evidence do we find anything to sustain the claim of plaintiff that he effected a sale of the properties at the price which, under the terms of the agreement alone would have entitled him to a commission.

The first and second assignments of error are respectively to the refusal of the court below to give binding instructions for the defendant, and to enter judgment non obstante veredicto. These assignments are both sustained. The judgment is reversed, and is here entered for the defendant.