Opinion
The customers procured by the plaintiff broker for the defendants' property signed a proposed contract to buy for $14,000, the price established by the defendants. The terms of payment in the contract were $500 by way of deposit, $7000 by means of a bank mortgage and $6500 by purchase money mortgage. The defendant G signed the contract but his wife, the defendant K, who owned the property jointly with him, refused to sign it. Since there was no finding that the terms offered by the customers were agreeable to K, and the marital status did not give rise to an agency empowering her husband to bind her to the contract, the judgment for the plaintiff to recover a commission could not stand.
Argued February 7, 1956
Decided February 28, 1956
Action to recover a broker's commission, brought to the Court of Common Pleas in Fairfield County and tried to the court, Sidor, J.; judgment for the plaintiff and appeal by the defendants. Error; new trial.
The appellee filed a motion for reargument which was denied.
PER CURIAM. In his motion to reargue the plaintiff contended that he was entitled to have the judgment stand against the defendant George Rusnak. The case was tried upon the theory that both of the defendants employed the plaintiff to secure a customer for the purchase of their property. The plaintiff claimed that he procured a customer ready, willing and able to purchase upon the defendants' terms and that the defendant Katherine Rusnak refused to accept the transaction. The defense was that the terms of sale were not acceptable to both defendants, and the finding does not disclose that they were acceptable to the defendant Katherine Rusnak. The question whether the defendant George Rusnak is liable for the entire commission was not an issue in this case until it was urged on appeal. We must dispose of the case upon the theory upon which it was pleaded and tried in the trial court. Maltbie, Conn. App. Proc., 22. The motion for reargument is denied.
Samuel C. Derman, with whom was Jacob J. Goldman, for the appellants (defendants).
Samuel Engelman, for the appellee (plaintiff).
In this action the plaintiff seeks to recover a broker's commission on the claim that he had produced customers ready, willing and able to buy property listed with him by the then owners on terms which the latter had fixed. The court rendered judgment for the plaintiff, and the defendants appealed.
From so much of the finding as is unchallenged, the following facts appear: In April, 1952, George and Katherine Rusnak were joint owners of property at 208-210 Brooks Street in Bridgeport. There was no mortgage upon the property. The owners listed it for sale with the plaintiff and agreed to pay him a commission of 5 per cent if he produced a customer ready, willing and able to purchase the property upon their terms. The established sale price was $14,000. The plaintiff brought the property to the attention of Bertram A. and Florine Taylor, husband and wife. On or about June 1, 1952, the plaintiff prepared a contract of sale which he brought to the home of the Rusnaks. This contract fixed the selling price of the property at $14,000, represented by a $500 deposit which the plaintiff was to obtain from the Taylors, a $7000 bank mortgage and a $6500 purchase money mortgage. The closing day was to be June 10, 1952. On June 2, the Taylors signed the contract, having paid the $500 deposit to the plaintiff, and George Rusnak signed it. It was presented to Mrs. Rusnak but she refused to sign it.
The court also found that Mrs. Rusnak thereafter lost interest in the proposed sale, but that on June 8, 1952, her interest was rekindled and she expressed a desire to consummate the transaction.
The fatal defect in the plaintiff's case is the lack of any finding that the plaintiff produced a purchaser who was ready, able and willing to buy the property upon terms agreeable to Mrs. Rusnak. She was a joint owner with her husband George. To make her liable for a commission, it must appear that the proposed terms were agreeable to her. Hancock Co. v. S. Z. Poli Corporation, 113 Conn. 545, 550, 155 A. 914. The finding that Mrs. Rusnak's interest was rekindled and that she expressed a desire to consummate the transaction is attacked by the defendants. However, as it stands it is not adequate to establish the fact that the terms upon which the plaintiff's customers were willing to purchase were agreeable or acceptable to Mrs. Rusnak. It is not claimed that George Rusnak's signature on the proposed contract bound Mrs. Rusnak. The marital status does not give rise to an agency. Agency has to be proved by a preponderance of the evidence. Cyclone Fence Co. v. McAviney, 121 Conn. 656, 659, 186 A. 635.
The view we take of the case makes it unnecessary to consider the claimed error in a ruling on evidence.