Opinion
No. 4103.
Decided March 4, 1952.
Where by the terms of an "exclusive authorization to sell" real estate for a period of three months the broker was to be paid a commission if a sale or exchange of the property was made within a further period of ninety days to parties with whom the agent had negotiated, a sale within the extended period to such a party entitled the broker to a commission irrespective of whether he produced a customer willing and able to buy. However if the plaintiff broker breached his duty to use reasonable efforts to effect a sale and such breach justified rescission of the agency by the defendant prior to the sale the broker is not entitled to recover a commission under the contract.
ASSUMPSIT, to recover a real estate broker's commission under a written contract. On the date thereof, the parties executed the following contract in writing:
"EXCLUSIVE AUTHORIZATION TO SELL
In consideration of one dollar ($1.00) to me paid by May Patterson the receipt of which is hereby acknowledged, I hereby employ The Fischer Agency, Dover, N.H. as my agent for a period of Three month (s) from date hereof to find a purchaser for the property situated in Dover, N.H. and described as follows: Land Building located on Tolend Road, Dover, N.H. and I hereby grant to said agent the sole and irrevocable right to sell said property within said time for $5,500.00 dollars or such other price as I may agree on with said agent and I hereby authorize said agent to accept a deposit thereon.
I hereby agree to pay said agent as commission Five per cent of the gross selling price whether it be sold by said agent or by me or by another agent or through any other source during the time set forth herein. Said commission to be due and payable on the date of transfer of title to such property.
Should a sale or exchange of the property be made within 90 days after the termination of this contract to parties with whom said agent negotiated during its life, I agree to pay said [agent] the commission fixed herein.
As owner(s) of said property it is agreed that a good and sufficient deed will be furnished to the buyer.
Should a deposit be forfeited, one-half thereof shall belong to me and one-half to said agent as his commission provided the agent's share shall not exceed the amount of commission which otherwise would be payable to him.
Special notations: . . . . . . . . . . . . . . . . . . . . . . . . . . . . In the presence of: May Patterson W. W. Fischer . . . . . . . . . . . . . . . . . . . . . . . . . . . Owner . . . . . . . . . . . . . . Signature of Husband or Wife of owner.
The above agreement is accepted on the conditions set forth therein.
Dated Sept. 7, 1949. Walter W. Fischer . . . . . . . . . . . . . . For Agent "
On January 4, 1950, the defendant transferred the property in question, situate on Tolend Road in Dover, to Samuel T. Bickford and Leona M. Bickford. This sale was effected through an agent other than the plaintiff. It is conceded that the plaintiff, sometime in September or October, 1949, prior to the services of the second broker negotiated with the Bickfords for the purchase of said real estate.
Trial by the Court who found that the plaintiff did not produce a customer willing and able to buy on the terms proposed by the defendant, and who returned a verdict for the defendant. The plaintiff excepted to this finding and verdict. All questions of law raised by the exception were reserved and transferred by Wheeler, J.
Frank E. Blackburn for the plaintiff.
Ovila J. Gregoire for the defendant.
Although the plaintiff's declaration made no reference to the express contract between the parties, it was introduced in evidence and the case was tried as if their rights were determined by it. No objection has been made to the form of the plaintiff's pleading. Accordingly, the case is treated as one of special assumpsit on a written contract.
The finding that the plaintiff did not produce a customer willing and able to buy does not dispose of the plaintiff's claim for a commission. Under the provisions of the agreement, "Exclusive Authorization to Sell," not only would the plaintiff earn a commission if he sold said property within three months but in the alternative he would also be entitled to one upon the happening of a certain event, namely, a sale of the property within ninety days after the termination of the contract to parties with whom the plaintiff negotiated during its life. "Thus, the contract of employment may provide that the agent's compensation is dependent only upon the happening of an event, irrespective of whether or not the agent's efforts have produced it." Restatement, Agency, s. 448 (b). Hoskins v. Fogg, 60 N.H. 402. Since it is not disputed that the plaintiff negotiated with the Bickfords, who subsequently bought the property within ninety days of the expiration of the term of the contract, the plaintiff is entitled to a commission if the relevant provisions of the contract were still in effect at the time of the sale and transfer to the Bickfords.
There was evidence tending to show that the contract was extinguished before the sale through the second broker either by mutual agreement or by rescission on the part of the defendant. The defendant testified that she "left word . . . to take it out of [the plaintiff's] hands . . . told him I was going to put it in Mr. Baxter's hands again," and it appeared that the plaintiff had said that he did not wish to "spend any more time on it," and notified the defendant that he was not interested in selling the property. There was also evidence that any lack of action on the part of the plaintiff may have been caused by an unduly high price placed upon the property by the defendant. It could be found that, as a result of this attitude on the part of the plaintiff, the defendant took the property from the hands of the plaintiff and gave it to Mr. Baxter to sell.
A broker owes the owner of real estate the duty of using reasonable efforts to make a sale where that, is the purpose of his employment. Restatement, Agency, s. 377 (b). Such efforts should be greater where the agency of the broker is an exclusive one, for then the owner is so much more dependent upon the broker's services. If it should be found on a new trial, that the plaintiff breached this duty and that the breach justified a rescission of the contract of agency by the defendant, then it could be found that at the time of the sale to the Bickfords the contract with the plaintiff was no longer in force. If the contract had been rescinded or otherwise extinguished, then the plaintiff would not be entitled to a commission upon the happening of the event of a sale made by another agent. It is a question of fact upon all the evidence, with respect to which fact no opinion is intended hereby to be expressed, whether the contract was extinguished by mutual agreement or by rescission or whether the defendant is liable to the plaintiff under its provisions. Larose v. Porter, 87 N.H. 241, 246. See also, Bates St. Shirt Co. v. Place, 76 N.H. 448.
New trial.
All concurred.