Havens v. Irvine , 61 Wyo. 309 ( 1945 )

CONCURRING OPINION I fully agree to all that is said in the foregoing opinion. This concurring opinion is submitted merely to deal with a matter which, as I recall, was somewhat discussed on the argument of this cause, and also to supply some supplementary authorities which additionally satisfy my mind that the views expressed by Judge Tidball are correct.

The material portion of plaintiff's pleading is as follows: After setting out that plaintiff is a real estate broker authorized to act as such under Wyoming law, it is alleged:

"That on or about March 27, 1941 Defendant employed Plaintiff to find a purchaser for certain real estate in Platte County, Wyoming described as follows: (the real property is here described) together with various leases to lands used in connection with the above described land for the price of $22,000.00 and Defendant thereupon agreed to pay for Plaintiff's services as compensation for finding a purchaser if such sale should be made, the sum of five per cent of the purchase price.

That thereafter while the employment was in full force and effect Plaintiff procured a purchaser to wit one Earl Von Forell who was ready, willing, and able to purchase the property herein described from said Defendant and who did purchase the property from said Defendant for the price of $22,000.00. That under the terms and conditions of said contract of employment, which contract was verbal, Plaintiff was entitled to receive from said Defendant the sum of $1,100.00 as his compensation for finding such purchaser and procuring the sale of said property."

These allegations are followed by averments setting forth a demand for the claimed compensation, the refusal to pay and a prayer for judgment. Defendant's answer admitted that Von Forell purchased the property and that the price paid was $22,000.00, but denied "each and every other allegation, matter and thing" not admitted in said answer.

It may be here noted that the pleading of plaintiff varies from the contract actually proven as to the listing with the broker. This listing was for $22,000.00 cash, or at least one-half cash, as established by the undisputed testimony in the case of both McGinley, the plaintiff's real estate salesman who took the listing, and Irvine, the owner of the property who gave it, when their testimony is considered as an entirety on this matter as it should be.

It is suggested that defendant did not plead a revocation of the listing but relied on a general denial of plaintiff's allegations of a cause of action. However, it is to be noted that both plaintiff and defendant introduced testimony and evidence of this revocation without any objection or exception on the part of either and it was a conceded fact in the case. The consequence of this situation has been pointed out by this court in Claughton vs. Johnson, 47 Wyo. 536, 41 P.2d 527, thus: Quoting from 49 C.J. 868 and 876, it is said:

"Admission of evidence without objection may aid and enlarge the pleadings, cure defects, or supply omissions thereon, and render it proper for the trial court to treat the pleadings as amended so as to conform to the proof."

Following this excerpt is the remark, "That statement has been substantially applied in a number of instances in this state."

Moreover it seems quite clear that plaintiff by introducing evidence on the point waived his right to object to this line of proof as without the pleadings. 4 C.J. 793-4 and cases cited. Regarding the right to prove revocation of authority of a broker under a general denial, authority may be found both upholding the right (Mott vs. Minor, 11 Cal. App. 774, 106 P. 244) and disallowing it (Mauser vs. Hurdle, 27 Colo. App. 567,140 P. 479; Bradley vs. Blandin, 91 Vt. 472, 100 A. 920.) In the Mauser case there would appear to have been no evidence of revocation in the record.

Additionally, in this connection it may be observed that plaintiff's petition alleges that "while the employment was infull force and effect plaintiff procured a purchaser, * * * who did purchase the property," etc. It is difficult to perceive why under a denial of that allegation by the defendant the latter was not entitled to prove as decisive of one of the issues in the case a revocation of the listing, thus establishing that the plaintiff's "employment" was not in full force and effect at the time the sale was made. This proof was, it would seem, both competent and material to a proper decision of the lawsuit.

Von Forell, the party who finally purchased defendant's ranch, testified as a witness for the plaintiff on cross-examination, to quote the abstract of the record submitted under our rules and used by the parties hereto, in part as follows:

"After I submitted my offer of the terms I could make or would agree to to Mr. Hildreth I did not hear anything more from anyone regarding that offer I had made. I wouldn't know whether my offer was ever submitted to Mr. Irvine or anyone else. I received a letter in June, the contents of which I have quoted in substance. I never received any other terms in writing from McGinley or any other letter. That is the only one. When those terms were given me it was $22,000.00. I didn't have that available and I didn't do anything. I couldn't meet the terms. We went right on hayingand I didn't do anything about any place then. I never had anyfurther contact concerning that place with Mr. McGinley. Onreceipt of the letter in June that was the end of thenegotiations with Mr. McGinley regarding the Irvine place. Ifinally did purchase this Razor Bill Ranch. Mr. Neeley came tothe place where we lived, and I was again interested in thepurchase, and renewed my interest that resulted in the purchase.That was in August. We were pretty near through haying, justbefore the county fair. I had a conversation with Neely about theplace. He asked me if I was interested in that place and I said Iwas, but I did not have sufficient money to buy it. From the timeMr. Hildreth first brought my attention to that place up toAugust 27 there was no time that I was able to buy that place onthe terms that had been quoted to me. * * * I remember the terms of purchase recited in the contract. Those terms of purchase had never been discussed between me and Mr. Irvine or with anybody else prior to the time I came over on the 28th and made the deal.I did not know when I came over whether I could buy or not. Mr.Neeley never stated any terms, just told me if I was interestedto come over and we would try to work out a deal, and we cameover and worked out a deal."

On redirect examination he also said:

____ "And throughout the summer of 1941 until Irvine entered intothe contract with me, whereby I purchased the ranch, I never hadthe cash to comply with the specifications that were tendered tome at that time."

His recross examination was:

"When I contacted Mr. Bellis I wanted to find out what the loan value would be so I would know whether there was any possibility of meeting the financial arrangement. My investigation revealed that there was not a possibility of making arrangements to purchase."

I have italicized what I believe to be the significant portions of the foregoing excerpt.

A case which would appear to be very pertinent in its application to this testimony of Von Forell which has been set forth above is that of Earp vs. Cummins, 54 Pa. St. 394.

That was an action of assumpsit by the plaintiff Cummins against Earp to recover commissions for the sale of certain real estate. "There was evidence," says the report of the case, "that the real estate was in the hands of the plaintiff for sale; that he offered it to various customers by telling them of it and by advertising it in his catalogues and in the newspapers; he also had a photograph of the house in his office and a memorandum of it in his book; that Richard Young called several times at his office, and that in an interview between the plaintiff and defendant, the plaintiff told defendant he thought he could be of use to him in effecting a sale to Young." Young ultimately bought the property from the owner, Earp. The plaintiff had verdict and judgment. Reversing this judgment and awarding a new trial, the Supreme Court of Pennsylvania speaking through Chief Justice Woodward uses this language:

"Although the property was advertised by the broker, and the attention of the purchaser was first called to it in that way, yet the evidence was that he declined to purchase, and all negotiations for a sale were abandoned for several months, nor was the purchase finally made until other parties again brought the property to his notice, and then Young, the purchaser, says he bought it, not in consequence of Cummin's advertisement, but by reason of this renewed recommendation by other parties. If anybody could tell how he bought, in consequence of what cause, Young himself was the proper witness, and he swore, `I was not influenced by Mr. Cummings at all in making this purchase. I did not know him in the transaction, he had nothing to do with the purchase so far as I know.'

"Now a real estate broker is the agent of the vendor. There must be an employment to constitute him an agent, and his service as such, however slight, must be the efficient cause of the sale. If a mere introduction of the property to the notice of the buyer effects the sale, the broker earns his commission. An advertisement or any other service is enough if it be the immediate and efficient cause of the bargain. But if the services of the broker, whatever they be, fail to accomplish a sale, and several months after the proposed purchaser has decided not to buy, he is induced by other persons to reconsider his resolution, and then makes the purchase as the consequence of such secondary or supervening influence, the broker has no right to a commission. In a certain sense it may be true that the purchase was in consequence of the broker's advertisement; but for that, the purchaser may never have looked at the property, nor entertained a thought of buying it, but the evidence in this case shows that it was at least due to another so distinct and separate a cause, that it was a mistake to permit the broker to recover. The simple answer to his demand was, that if the evidence was believed he did not cause the sale, that is, his agency was not the immediate and efficient cause of the sale, and law regards only proximate and not remote causes."

This decision was, it may be noted, by a unanimous court.

Also analogous to the case at bar in many respects, and especially in regard to the matter of revocation of the agency to sell and time elapsing after such revocation and before sale by the owner is the case of Stedman et al. v. Richardson, 100 Ky. 79,37 S.W. 259. There the trial court found the facts to be that:

"defendant was to pay them a commission of two per cent, upon the selling price for their services, in the event that plaintiffs procured a purchaser for said property; that the plaintiffs did find C.H. Chenault, and did show show him said property, with a view to securing him as a purchaser; that Chenault did not buy said property while it was in plaintiff's hands, but that said property was taken out of plaintiff's hands upon their failure to make a sale of it, and one day after it hadbeen so withdrawn the defendant negotiated a sale of saidproperty, and did sell it to said Chenault at the price named in the petition. The plaintiffs found Chenault, and but for them the defendant would not have sold to him The Court finds that the defendant, and not the plaintiffs, negotiated the sale to Chenault. The plaintiffs were not the actual or moving cause of said sale. They had found the man who became the purchaser, and showed him the property; but when it was sold said property was, in good faith, out of their hands, and they were not negotiating a sale with him at the time it with withdrawn from them." (Italics supplied).

A judgment for the defendant followed.

Affirming this judgment the Court of Appeals of Kentucky, after referring to the general rule in substance as stated by 43 A.L.R. 1104, pointed out that:

"The question involved in this case is not covered by the rule stated, but it is whether, when the seller in good faith withdraws the property from the hands of the broker, and subsequently sells it to one to whom the broker has made an effort to sell, can the broker claim his commission. The brokers failed to make the sale before a rightful withdrawal of the property from their hands. It was not withdrawn for the purpose of preventing them from making their commission. The mere fact that the brokers showed the purchaser the property, and failed to consummate the sale before the withdrawal, does not entitle them to their commissions. * * * It may be said that perhaps the contract was that the sale was to be consummated only in a reasonable time. Under such a contract the rule is that the broker is entitled to a reasonable time in which to find a purchaser, after which, if he be unsuccessful, the principal may revoke the broker's authority to sell, and not incur any liability, unless it was done to avoid the payment of commissions, while availing himself of the benefits of the broker's efforts by completing the negotiations then pending. Although the seller, under such circumstances, may subsequently sell to one to whom the broker made an ineffectual effort to sell, the rule is the same. Mechem, Ag. § 968; Sibbald v. Iron Co., 83 N.Y. 378. There is no reason why real-estate brokers should not be held to comply with the terms of their contracts, unless wrongfully prevented by their principals, before demanding their commissions. In the case at bar the withdrawal was in good faith, and when no negotiations were even pending for the sale of the property."

Confirmatory of the fact that the terms suggested by Von Forell to Hildreth as a basis on which the former might be able to purchase the ranch property of the defendant were never communicated to Irvine by plaintiff or his agents, the positive testimony of plaintiff's witness Hildreth is:

"Q. After May 5th, Mr. Hildreth, and according to your direct testimony shortly after May 18th, Mr. Von Forell had a conversation with you in which he told you what he might be able to do in the way of arranging to purchase?

A. Yes, sir.

Q. That was so much cash, and payments at a later time?

A. Yes, sir.

Q. Some payments?

A. Yes, sir.

Q. Did you ever transmit that proposition to Mr. Irvine?

A. Not personally."

The witness then at first stated that he could not recall transmitting the Von Forell proposition to anyone but afterwards said he did "contact McGinley" by conversation, finally saying:

"Q. But not Mr. Irvine?

A. No, not Mr. Irvine.

Q. So that there was no effort made on your part directly with Mr. Irvine to bring Mr. Von Forell and Mr. Irvine together on any terms that Mr. Von Forell could make?

A. Not personally between me and Mr. Irvine?"

The affirmative testimony of plaintiff's witness, McGinley on this point is:

"Q. Did you ever receive from Mr. Hildreth any terms or offer of purchase made by Mr. Von Forell?

A. No, no offers.

Q. What is that?

A. Never received any notice of offer.

Q. Did you ever receive any offer from Mr. Von Forell to purchase this property on any terms?

A. I did not.

Q. And you never communicated any terms of purchase by him to Mr. Irvine?

A. No, I never did?

It would seem clear, as pointed out in the main opinion herein that the proof utterly fails to establish a performance of the terms of the original listing. The condition to earning a commission herein was that the sale should be entirely for all or a large part in cash to be paid to Irvine. The compensation was to be earned when a customer should be obtained who would pay this price. There is no pretense that such a purchaser was found or that such a sale was made. Irvine finally entered into an altogether different sale agreement. The performance relied on by the plaintiff does not meet the requirements of the rule announced by the decisions hereinabove reviewed and cited, and succintly declared by Mr. Justice Nelson in McGavock vs. Woodlief, 61 U.S. (20 How.) 221, 15 L. Ed. 884, where he said:

"The broker must complete the sale; that is, he must find a purchaser in a situation and ready and willing to complete the purchase on the terms agreed on, before he is entitled to his commissions. Then he will be entitled to them."

I am authorized to say that Judge Tidball concurs in this opinion.