DocketNumber: NO. 8976
Citation Numbers: 7 Pelt. 424
Judges: Bell
Filed Date: 3/5/1923
Status: Precedential
Modified Date: 7/24/2022
Plaintiff has sued defendant herein for his share of certain commissions involved in the sale of certain real estate, it being claimed that the right to said commissions arose from a certain written oontraot reading,in part,as follows:
"August 5, 1921.
"That the said Mr. J. Hy. Blaohe, as real estate broker, agrees to employ the services as salesman, of Mr. Gabriel H. Fuselier, with the mutual understanding that on all business created and effected by the said Mr. Fuselier; that is to say, that on any contracts to buy or sell or lease secured by the said Mr. Fuselier which results in business being effected by said Mr. Blaohe, or on any contracts to sell, buy" or lease secured by the office of said Mr. Blaohe on which the said Mr. Fuselier effeots business, the said Fuselier is to receive half of the commission received by Mr: Blache on said business. * * *
"(Original signed) J. Hy.. Blaohe
" " Gabriel H. Fuselier."
The above is, in substance, a copy of the aforesaid oontraot made part of plaintiff's petition. It is alleged in his petition that on April 21, 1920, long prior to the making of the said oontraot, plaintiff received an offer, in writing, from the owner of oer-tain lotB known as the "Woodville Traot Ho. 2," on Gentilly Hoad, in the City of New Orleans; that on Sept. 7, 1921. some thirty days after the signing of the oontraot between the parties to this suit, plaintiff wrote the owner of the Woodville Tract again making inquiries concerning the lots' and asking if same were for sale; that three days later, on September 10. 1921, the owner of the lots having replied to plaintiff's letter of inquiry, was advised by plaintiff over .the telephone to get in touch with the defendant in this suit and the address of said defendant was given-him, and that as a result of placing the owner of said lots in touch with the defendant, an ultimate sale of said lotB was made by the defendant to a third party, the defendant realizing from said sale the sum of $341.25. These are, in substance,
Defendant has answered this suit, first pleading an exception of no cause of action, which has not been seriously urged and which was overruled hy the trial court, and then, specially answering, urges that tho written oontraot, which is admitted, and the subsequent sale, which is admitted, could not in any manner have made defendant liable to plaintiff for half of the commissions for the reason that it was specifically agreed between the parties to this suit that commissions would only he due upon such otntraota as plaintiff may have procured and had signed between the parties to the sale, that is, the commissions were to he earned on actual sales made hy plaintiff on "signed contracts" or "signed listings."
There was judgment in the liver court in favor of plaintiff, from which defendant has appealed.
From the pleadings in this suit we gather there is only one defense seriously urged to plaintiff's olaim and that is that outside of the written oontraot there was the agreement qualifying it as above set forth. At the trial of the oause the testimony on this suhjeot was properly objected to, and the record shows that when the objection was made to said testimony concerning "signed contracts" as a condition to the earning by plaintiff of his commission, counsel for defendant made the specific statement after the objection was interposed^that defendant did not oare to press the question. However, later on in the testimony we find the question again ashed of the plaintiff, who positively denies that there was any such agreement.
"ft.-When you saw Mr. Blache you introduced yourself to him, did you not?
"A.-Yes, sir.
"ft.-Did you know him at that time?
"A.-Wo, sir.
"ft.-Did you tell him who referred you to him?
"A.-Yes, sir.
"ft. — Who was that?
"A.-Mr. Yuselier.'
"ft.-That was before you had any dealings at all with Mr. Blache that you told him that?
"A.-Yes, sir."
After careful oonsideration of the reoord in this case, of the letters and correspondence made part hereof, we are oon-vinoed that the transaction under whioh the defendant earned the commissions, half of whioh plaintiff now sues for, arose entirely through the fact that the plaintiff and he only brought the owner of the property, whioh defendant sold, into business communication with the defendant, and the defendant never knew of the party until said party phoned him at the request or instructions of plaintiff. Applying these facts to the oantraot
II 13, THEREFORE, ORDERED, ADJUDGED ADD DECREED that the judgment herein appealed from be and the same is hereby affirmed at the defendant's costs in both courts.
JUDGMENT AFFIRMED.
MARCH 5, 1923.