Opinion
No. 32,364.
April 5, 1940.
Broker — "sole agent to sell" real estate — rights of owners — liability for commission.
1. A contract appointing one "sole agent to sell" real estate for the owners, without more, does not deprive the owners of the right themselves to sell, without liability for commission, to a purchaser not procured by the agent.
Appeal and error — appeal from order sustaining demurrer — necessity of settled case.
2. When a case comes here on appeal from an order sustaining a demurrer no settled case is needed.
Action in the district court for Hennepin county to recover general and special damages for alleged breach of a contract to sell real estate. From an order, Edmund A. Montgomery, Judge, sustaining the demurrer of defendant George S. Wilson to the complaint, plaintiff appealed. Affirmed.
John J. Dudley, for appellant.
Jesse Van Valkenburg, Horace Van Valkenburg, and Warren E. Blaisdell, for respondent.
Plaintiff appeals from the order sustaining defendant Wilson's separate, general demurrer to the complaint.
Plaintiff sues for general and special damages for breach of a contract between itself and John E. Cable and his wife (now his widow) Elma L. Cable. The contract was made March 1, 1937. Mr. Cable died two years later. By the contract the Cables appointed plaintiff their "sole agent to sell" a certain Ramsey county subdivision. Plaintiff had partially performed the contract when Mr. Cable died. His widow, as executrix, sold the portion of the property not earlier disposed of by plaintiff to defendant Wilson. There is no allegation that Mr. Wilson was procured as purchaser by plaintiff.
1. Inasmuch as plaintiff was but an exclusive selling agent under a contract which did not deprive the Cables of their own right to sell directly to a purchaser not procured as such by plaintiff, the latter has no cause of action arising from the sale to Wilson. That is long settled law. Dole v. Sherwood, 41 Minn. 535. 43 N.W. 569, 5 L.R.A. 720, 16 A.S.R. 731; Smith v. Preiss, 117 Minn. 392, 136 N.W. 7, Ann. Cas. 1913d 820.
It is immaterial that plaintiff has alleged a conspiracy between Mrs. Cable and Wilson to interfere with its contract rights. Mrs. Cable had the right to sell to Wilson, and Wilson had the right to buy. So the result was without illegal injury to plaintiff.
There is an allegation that when the sale to Wilson was made plaintiff had earned commissions under the contract which have not been paid. There is no averment that Wilson is in any way liable for such commissions, a fact which counsel for plaintiff has conceded with a candor which is commendable but too infrequent in partisan advocacy.
2. We observe with chagrin that counsel have deemed it necessary to have a case settled by the trial judge. That was wholly unnecessary. A case coming here on appeal from an order on a demurrer is adequately presented, so far as record is concerned, by the return of the clerk. Fidelity-Philadelphia Trust Co. v. Brown, 181 Minn. 392, 232 N.W. 740.
Order affirmed.