Harris v. McPherson

I can find no authority in the books for the rule announced in the opinion, that an employment of a broker for the accomplishment of one particular transaction does not fall within the general rule of agency that "where the contract of employment does not expressly or impliedly specify the time during which the agency shall continue, the law presumes that it shall last as long as both parties desire, and terminate at the will of either party." 2 Corpus Juris, p. 525. It seems to be assumed that an employment of a real-estate broker for a particular purpose, implies a promise not to terminate the employment until a reasonable time has elapsed for the accomplishment of the purpose. That such is not the law is apparent from the fact, necessarily conceded in the opinion, that an employment of a broker to find a purchaser for a particular property may, unless limited in point of time, rightfully be revoked at any time before a customer is found, provided the revocation is in good faith and not for the purpose of depriving the broker of a commission virtually earned. In explanation of this apparent contradiction, it is said that the employment of a broker under an ordinary listing contract "does not consist so much of a contract as an offer, which does not ripen into a contract unless the broker procures a customer while the owner still holds the property." From this proposition also I dissent. An employment of a broker — on any terms — necessarily creates a contractual relation based on offer and acceptance.Hayes v. Clark, 95 Conn. 510, 517,111 A. 781. In my opinion the case of Cadigan v. Crabtree,179 Mass. 474, 61 N.E. 37, does not support the proposition stated in the opinion. It does state the very different legal proposition, which is just as true of the contract in suit as it is of an ordinary listing contract, that the owner's promise to pay a brokerage commission is in the nature of an offer contingent on the broker's success; but it expressly bases the right of the owner to put an end to the broker's employment, not on the character of the employment in that case, but broadly on "the nature of a brokerage commission," in that it is dependent on success and is in no way dependent upon, or affected by, the amount of work done by the broker; — differing in that respect from the ordinary employment of labor. pp. 480, 481.

So, also, the rule as stated in Corpus Juris and elsewhere applies generally to an employment to sell, as well as to an employment to find a customer, and without reference as to whether the employment is exclusive or not. "Thus where the contract of employment specifies no time during which the broker's authority to sell, or to negotiate for a [contract of] sale, shall continue, the authority is subject to revocation at any time before a sale is made, or a customer found who is ready, willing, and able to purchase on the required terms, without liability on the part of the owner to the broker, save under exceptional circumstances." 9 Corpus Juris, p. 520; 4 Rawle C. L. p. 254; 1 Mechem on Agency (2d Ed.) § 563 et seq. In this case there are no exceptional circumstances, for the plaintiff made no promises except the usual implied promise to use reasonable efforts to secure a purchaser for the property. Hayes v. Clark, 95 Conn. 510, 111 A. 781.

The sale of the property by the defendants operated as an effectual revocation of the plaintiff's authority to sell it over again. Huffcut on Agency (2d Ed.) p. 79. Irrespective of notice his authority was gone. It may be conceded that if the plaintiff, after the sale and before notice of it, had done anything which entitled him to compensation under the contract, or had been at any expense in ignorance of the revocation, the defendants would be liable to that extent. But no such facts are found. What happened was that about April 1st the plaintiff, in answer to an inquiry, told the defendants he was "waiting for the weather to break before trying to sell it"; shortly before April 20th the defendants sold the property to a customer not interested by the plaintiff, and shortly after April 20th, notified the plaintiff that it had been sold. In the meantime no compensation had been earned. "If the revocation of the agency be not a breach of the contract, as where the agency is at the will of the principal, . . . no damages can be recovered, but only compensation for services . . . rendered." Huffcut on Agency (2d Ed.) p. 98.

Up to this point it has been assumed that the contract deprived the plaintiff of the jus disponendi; but I think the phrase "exclusive sale," as applied to the authority of a real-estate broker, is ambiguous, not only in law (9 Corpus Juris, p. 528), but also in common speech; and when contained in a simple contract of employment devoid of any unusual promises by the broker, ought not to be interpreted as conferring an unusual authority upon him, especially when, as in this case, it is found in a printed form prepared by the broker and submitted to the owners for signature.

In this opinion BURPEE, J., concurred.