E. B. Wicks Co. v. Moyle , 103 Utah 554 ( 1943 )

I agree that the frequent references made to the Ballard lease put the respondent on notice that Moyle did not intend to authorize respondent to make a lease which would begin prior to the expiration of the Ballard lease. The offer was silent as to the date when the proposed lease was to begin. Since the respondent had notice of Moyle's intention in this regard, it either should not have acted until the date had been made more certain or it should have read into the offer the date of the expiration of the Ballard lease.

This was a special offer. Before the respondent would be entitled to the $600 commission, it had to bring itself within the conditions stated in the offer. The offer which the respondent procured from Lyman Motor Company was not an acceptance of the special offer made by Moyle, but was, in fact, a counter offer which constituted a rejection of Moyle's offer. The negotiations between Moyle and Lyman Motor Company which were being carried on through the respondent broke down. Lyman Motor Company demanded the return of its deposit and withdrew from the transaction and abandoned the proposed lease. Subsequently Moyle and Lyman Motor Company reopened negotiations and were able after Moyle made certain substantial concessions to get together on a lease beginning on April 1st. This April 1st lease was not the lease which the respondent was authorized to make for Moyle; nor was it substantially the same lease proposed in the Lyman Motor Company counter offer. Since the respondent had not complied with the conditions of the special offer, it was not entitled to the commission, even though Moyle reopened the negotiations and made this April 1st lease with the respondent's customer, the Lyman Motor Company. The general rule in this regard is stated as follows in 12 C.J.S., Brokers, § 86, pp. 196, 197:

"* * * the broker is not entitled to a commission on a transaction consummated by the principal where the contract of employment requires the broker to render a specific service to earn a commission and he has not rendered that service; his right to a commission depends on a condition which has not been waived or fulfilled, such as a sale at a certain price; or where, by reason of the abandonment or failure of his negotiations, or otherwise, he is not the procuring cause of the transaction, * * *."

See, also, Backman v. Gaudalupe Realty Co., 78 Cal. App. 347,248 P. 296; Holland v. Flash, 20 Cal. App. 686,130 P. 32; Case v. Harrison, 192 Miss. 531, 6 So. 2d 582; 8 Am. Jur. 1101.

In the instant case the respondent did not comply with conditions set out in the offer nor was the respondent the procuring cause of the sale. Its negotiations with Lyman Motor Company fell through. Lyman Motor Company and Moyle had been dealing directly with each other before the appellant entered the scene. They got together only after Moyle made substantial concessions and the lease finally executed was not as favorable to Moyle as was either the proposed lease contained in Moyle's offer or the lease proposed by the counter offer made by Lyman Motor Company. A different result might be reached if the counter offer procured by the respondent had been substantially the same as the offer made by Moyle. Also if Moyle had, after receiving the counter offer, merely rejected it and then gone ahead and effected with the respondent's customer a lease substantially the same as that contained in the counter offer procured by the respondent, it might be held that the respondent would have been the procuring cause of the lease and hence be entitled to the commission. But in the instant case neither of these situations exist. The counter offer was substantially different from the original Moyle offer and the final lease agreement executed by Moyle and Lyman Motor Company was substantially different from the counter offer. I, therefore, concur with the result reached by Judge Hoyt.

PRATT, J., on leave of absence.