Opinion
No. 36074.
February 25, 1946. Suggestion of Error Withdrawn April 22, 1946.
1. BROKERS.
Generally a broker, who is the procuring cause of a sale, is entitled to a commission even though vendor makes sale himself in ignorance of fact that broker is procuring cause.
2. BROKERS.
Where broker procured a purchaser whom he sent to vendor but purchaser did not disclose to vendor that broker was procuring cause and dealt directly with vendor and, under sales agreement, vendor received substantially the aggregate amount in purchase price at which broker was authorized to negotiate sale, so that vendor was put to no position less advantageous than if he had known that broker had procured purchaser, broker was entitled to commission.
APPEAL from the chancery court of Sunflower county, HON. H. TALBOT ODOM, Special Chancellor.
Forrest G. Cooper, of Indianola, and H. Lee Herring, of Ruleville, for appellant.
The general rule is well established that if property is placed in the hands of a broker for sale at a certain price, and a sale is brought about through the broker as the procuring cause, he is entitled to commissions on the sale even though the final negotiations were conducted through the owner, who, in order to make a sale, accepts a price less than that stipulated to the broker. The exception to the rule is stated as follows: It is elementary law that where a contract is made on a certain named condition, a party seeking to recover under the contract must bring himself within the condition. Therefore, when the contract expressly makes the payment of commissions depend on the obtaining of a certain price for the property, the broker cannot recover, even though the owner sells at a less price to a person to whom the broker first shows the property, unless the broker is prevented from making the sale by the fault of the principal. This exception is as well established and supported by the authorities as is the rule itself.
Case v. Harrison, 192 Miss. 531, 6 So.2d 582; Kolb v. Bennett Land Co., 74 Miss. 567, 21 So. 233, 234; Swain v. Pitts, 120 Miss. 578, 82 So. 305, 306; Roell v. Offutt, 138 Miss. 599, 103 So. 239; Tupelo Hotel Co. v. Long, 156 Miss. 337, 126 So. 6; Ann. Cas. 1913E, 784, 786; 4 R.C.L. 322, Sec. 59; 43 A.L.R. 1104-1111; 57 A.L.R. 856; 12 C.J.S. 134, Sec. 60, pp. 196, 197, Sec. 86, subsec. (b).
The broker is not entitled to a commission if the owner at the time of concluding the transactions, had no notice of the previous negotiations between the broker and the purchaser.
Ex parte Rawls, 208 Ala. 164, 93 So. 820; Rawls v. Carlisle Baston, 18 Ala. App. 644, 93 So. 818; Cleveland v. Reconstruction Finance Corp., 292 Ill. App. 634, 10 N.E.2d 867; Las Vega Realty, etc., v. Sparks (N.M.), 218 P. 348; Dancy v. Baker, 206 Ala. 236, 89 So. 590; Murawska v. Boeger, 219 Ill. App. 241; 12 C.J.S. 217, Sec. 93; 8 Am. Jur. 1101.
Frank E. Everett and J.M. Forman, both of Indianola, for appellee.
Where the contract between the owner of the property and the agent specifies the price and terms of sale, the agent performs his duty, and is entitled to his commission, when he procures a purchaser ready, willing and able to buy, even though the owner may then decline to sell.
Partee v. Pepple, 197 Miss. 486, 20 So.2d 73.
Where property is placed in the hands of a real estate agent for sale at a certain price, and on specified terms, and a sale is brought about through efforts of the agent as the procuring cause, he is entitled to his commissions on the sale, even though the final negotiations were conducted through the owner, who, in order to make the sale, accepts a price less than that stipulated to the agent, or when he sells at the price at which the agent was authorized to make the sale.
Partee v. Pepple, supra.
Argued orally by Forrest G. Cooper, for appellant, and by Frank E. Everett, for appellee.
We are of the opinion that, excluding all incompetent evidence, there remains enough to sustain the findings of fact by the Chancellor and to support the decree under the law of the case as laid down on the former appeal, Partee v. Pepple, 197 Miss. 486, 20 So.2d 73. We think, however, that the finding that the Pepples knew at the time they made the original contract of sale with May that Partee, the agent, was the party who had procured May as purchaser is not sufficiently sustained by the competent evidence, and this raises the question, necessarily, whether the want of that knowledge on the part of the Pepples will defeat the agent of his commissions.
There is no real doubt that Partee the agent procured May as a purchaser, and May admits that he promised Partee that he, May, would inform the Pepples that he was sent to them by Partee, and he admits that he did not so inform them, but dealt with them on the pretense that he had had no connection with any procuring agent. The additional fact, and one of controlling importance, is that in the sale by the Pepples to May they received substantially the aggregate amount in purchase price at which the agent was authorized to negotiate the sale, wherefore they were put in no position less advantageous than if they had known that the agent had procured the purchaser.
In such a case the rule according to the weight of authority, and in which we concur, is that "a broker who is the procuring cause of a sale is entitled to a commission even though the owner makes the sale himself in ignorance of the fact that the broker is the procuring cause." 12 C.J.S., Brokers, sec. 93, p. 217, and 8 Am. Jur., p. 1101 and the numerous cases cited in support of the texts. See also the case note 8 L.R.A. (N.S.), p. 153.
If the Pepples had sold to May on terms substantially less advantageous to them than the terms on which Partee was authorized to procure a purchaser, there would be a different case, as was Rawls v. Carlisle Baston, 208 Ala. 164, 93 So. 820, cited, among a few others, by appellant.
Affirmed.