Opinion
June Term, 1857.
It was agreed between A and B that, if the former would sell the latter's land for more than $1500, he might have all he could get over that sum. A sold it on credit for $1800, and bonds were taken, payable to B for the whole sum, which B accepted, and gave a bond to make title; Held, that A was not entitled to his compensation, until the money became due, and was collected. On might have been.
ACTION OF ASSUMPSIT, tried before SAUNDERS, J., at the Spring Term, 1857, of Stokes Superior Court.
It appeared that, in September, 1854, the plaintiff and defendant, by parol, agreed that, if the plaintiff would sell defendant's land, that the plaintiff should have all he could get for it over $1500; that after this contract was made, the plaintiff sold the land for $1800, and in the same month (September) plaintiff, defendant, and Vernon, the purchaser met when the defendant received in cash from Vernon, some two or three hundred dollars, and took his notes for the remainder of the eighteen hundred dollars, and gave Vernon a bond to make title when the purchase-money was paid. After this was done, plaintiff requested defendant to give him his note for his three hundred dollars; to which defendant replied, "his word was as good as his bond."
Vernon was solvent, but it did not appear whether or not the notes were due at the commencement of the action.
Defendant insisted that the plaintiff was not entitled to recover on this state of facts, and prayed his Honor so to instruct the jury. A verdict was taken for the plaintiff, subject to the opinion of the Court, with leave to set it aside, and enter a nonsuit, if his Honor should be of opinion against the plaintiff.
Afterwards the Court ordered a nonsuit, and plaintiff appealed.
McLean and Miller, for plaintiff.
Morehead, for defendant.
We concur with his Honor that this plaintiff commenced his action too soon. Had the matter rested upon inference, we would have been of opinion that the plaintiff, according to the agreement, was to sell for cash, and by way of compensation for his trouble, and in lieu of commissions, was to have all he got over $1500; that is, the defendant was, in the first place, to have $1500 in cash, in consideration for his land, and the plaintiff was then to have any excess he might be able to obtain.
By giving a long credit without interest, the plaintiff could, no doubt, have found a purchaser at $2000, or even a larger sum; and so the defendant, if he was held down to $1500, when the credit was out, would lose interest and the profits of the land, and the consideration received by him be, in fact, less than $1500.
It appears from the evidence, that the plaintiff sold, in part, for cash, and the balance on time, to be secured by the notes of the purchaser, and the title to be retained. In this, the defendant acquiesced. He received a part in cash, took the notes of the purchaser, and executed a bond to make title when the purchase-money was paid. The point is, at what time, according to the intention of the parties, did the plaintiff's right to demand the compensation agreed on, accrue? It is against reason to suppose that the defendant was bound to pay the plaintiff's compensation out of his own pocket, and wait for the price which he was to have for his land, until the sale-notes became due. This, to use a familiar expression, is "putting the cart before the horse." The primary object was to enable the defendant to effect a sale of his land, and get the money for it. The plaintiff's compensation was secondary — an incident that was to follow. The plaintiff did not get for the defendant $1500, by procuring the notes of the purchaser on time, no matter how solvent he was. He had no right to demand anything for his services until the defendant received the price, or had a right to receive it. So, his cause of action will not accrue until the sale notes fall due, and the defendant receives the money, or has a reasonable time to collect it and is guilty of laches.
The expression used by the defendant that "his word was as good as his bond," amounts to nothing. The meaning is, that his word was as good as his bond, for anything he was bound to do, but that he did not think he was bound to pay the plaintiff before he got the money himself; and in that, we concur with him.
The case referred to by the defendant's counsel — Bull v. Price, 7 Bing. Rep. 237, (20 Eng. Com. Law Rep.) is in point. Bull undertook to negotiate with the commissioners of woods, for the sale of Price's interest in certain premises, and was to attend to the business in reference to the valuation, c., and was to have two per cent on all he obtained by private treaty, arbitration, or trial by jury, for his trouble and exertions. The value was ultimately fixed by a jury at £ 4000, but it turned out that the property was charged with an annuity of £ 80 a year. In consequence of a difficulty in settling this matter, the payment of the £ 4000 was postponed, and the commissioners paid the money into bank, where the parties entitled to it could get it by application to the Court of Exchequer. Bull commenced his action before Price had received the money, and it was decided that he began too soon. The Court say, he was entitled to commissions, not on the sum which may be agreed on, or awarded, or ascertained by a jury, but on the sum which may be obtained by the defendant, and that Bull must wait until Price "actually obtained, that is, received it," or, at least, until the amount that he ought to receive, was ascertained.
So, we say, the plaintiff must wait until the price, agreed to be paid, fails due.
PER CURIAM. Judgment affirmed.