Wright & Kimbrough v. Dewees

Defendants appeal from a judgment rendered against them in the sum of $600 for commissions, with interest and costs. The action arises out of a contract for the sale of real estate between defendants, the owners, and plaintiff, a -corporation engaged in the real estate business, and containing, among others, the following provision: “The said ‘seller’ agrees should a sale or exchange of said above described property upon said or any satisfactory terms be effected during the period of time hereinafter named, by either party to this agreement, or any other party, or after determination of this contract, if sold to a párty to whose attention said property was brought through the agency of the said ‘agent,’ that the said ‘agent’ shall receive out of the first payment made on said property five -per cent of the price for which said property was sold as a commission for promoting said sale.” The contract, dated January 7, 1916, was for sixty days and thereafter until the expiration of ten days’ written notice, and the price named therein was $18,000

The question here presented is the proper construction of the above clause. There is no substantial conflict in the evidence. It appears that Mr. Mull and his wife were well acquainted with the property, defendants’ residence located in Sacramento, before plaintiff entered into the situation. More than a year before defendants contracted with plaintiff for its sale the Mulls were looking at other property in the neighborhood, with the object of buying, and defendants at that time talked to Mr. Mull and endeavored to sell their home to him. Thereafter the Mulls frequently looked at the property from the outside of the house and talked with defendants about it, the last conversation occurring just prior to contracting with plaintiff. No offer, however, was made to defendants as a result of these conversations. When plaintiff interviewed the Mulls regarding the property, they told him they knew it was for sale. Defendants also told plaintiff, after the contract was signed, that the Mulls were interested in the property and were good prospects. Plaintiff ■ likewise was unsuccessful in obtaining an offer from the Mulls, although he took them to see the property once or twice, being the first to show them the interior of the house, and endeavored to sell it to them. Mr. Wright, plaintiff’s representative in this matter, then reported to defendants that the Mulls were no longer interested in the property and to forget about them as prospective purchasers, that he had seen plans which they had prepared for a home which they intended building. Thereafter and on March 31, 1916, defendants served upon plaintiff written notice of cancellation of the contract as therein provided, no sale having been made, and no offer whatever having been obtained from Mr. Mull. About a month later plaintiff solicited a new contract of sale from defendants, which they refused. The matter was dropped, so far as the Mulls were concerned, until several months later, when negotiations were entered into between Mull and defendants, as the court found, without fraud as to plaintiff. In January, 1917, about nine months after the contract was canceled, and after plaintiff had ceased all negotiations in the matter, Mull offered defendants $12,000, for which defendants sold

[1] The law is well settled by a long line of decisions that in order to entitle a broker to recover commissions under the ordinary broker’s contract the evidence must show that he was the procuring cause of the sale. “The rule is that to entitle a broker to a commission for the sale of real estate which he has been given by the owner authority to sell, he must produce before the owner a purchaser ready, willing and able to purchase at the price and on the terms specifically expressed in the contract of employment. While a change made by the owner, when consummating the sale, in the price of the land or the terms of the sale from those specified in the broker’s contract cannot of itself affect or impair in any way the right of the broker to his commission, the latter cannot claim a commission unless his efforts are the procuring or inducing cause of the sale. ... ‘In order for the broker to recover, the evidence must show that his efforts were the procuring cause and not merely one in a chain of causes.’ ” (Both v. Thomson, 40 Cal. App. 208 , [ 180 Pac. 656 ]; Waterman v. Boltinghouse, 82 Cal. 659 , [ 23 Pac. 195 ]; Snook v. Page, 29 Cal. App. 246 , [ 155 Pac. 107 ]; Dolan v. Scanlan, 57 Cal. 261 ; Ayres v. Thomas, 116 Cal. 140 , [ 47 Pac. 1013 ].) The evidence must also show that the transaction was completed within the time limited in the contract, unless the delay was caused by the negligence, fault, or fraud of the owner. (Ropes v. John Rosenfeld’s Sons, 145 Cal. 671 , 677, 678, [ 79 Pac. 354 ]; Brown v. Mason, 155 Cal. 155 , [ 21 L. R. A. (N. S.) 328 , 99 Pac. 867 ]; Naylor v. Ashton, 20 Cal. App. 544 , [ 130 Pac. 181 ].) The obvious purpose of the insertion in the above-quoted clause of the words: “or after termination of this con

The principles stated in Strout v. Hubbard, 104 Me. 366 , [ 71 Atl. 1020 ], and Moore v. Holman Real Estate Co., 129 Ark. 465 , [ 196 S. W. 479 ], cited by respondent, are in conflict with this rule. However, in the former case the facts

In Williams v. Leslie, 111 Ind. 70 , [ 12 N. E. 102 ], the provision of the contract under construction was: “If a customer is introduced through the^ agency of the said Leslie [the broker], and a sale is afterward consummated with such customer, I agree to pay the commission before mentioned, whether the time of this agreement shall have expired or not.” (Emphasis added here.) The court said: “The effect of that clause was that, in the event of a sale, when or by whomsoever consummated, if made to a customer introduced through the agency of Leslie,—that is, if the latter was the procuring cause of the sale,—he was to have his commission.” (Emphasis added here.) In Shipman v. Wilkeson, 112 N. Y. Supp. 895 , in which the facts were very similar to those in the instant case, the decisive question was the meaning of the clause in the contract entitling the broker to commission if the farm was sold after the expiration of the contract “on information obtained through your agency.” The court said: “The only valid purpose of the stipulation in question must be to protect the broker from loss of compensation for successful efforts in procuring a purchaser, culminating in a sale on the stipulated terms after the broker’s authority to effect a sale has terminated.

For the reasons given the judgment is reversed.

Langdon, P. J., and Sturtevant, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on May 19, 1921. 0

All the Justices concurred, except Wilbur, J., who was absent.