Opinion
No. 4048.
Decided July 2, 1951.
Where an agreement between an owner of real estate and a broker provides that if either party fails or neglects to perform his part of the contract he should forfeit a certain sum as liquidated damages, the finding was warranted that the broker's commission was payable only upon performance of the purchaser's undertaking. Hence, where the purchaser was financially unable to purchase the property the plaintiff owner was entitled to recover from the broker a deposit made with it by the purchaser.
ASSUMPSIT, to recover from the defendants, who are brokers, a deposit of $500 made with them by buyers under an agreement to purchase real estate from the plaintiff. Trial by Court resulting in a verdict for the plaintiff for the amount of the deposit. The defendants excepted to the denial of their motion to set aside the verdict as contrary to the law, the evidence and the weight of the evidence.
On November 29, 1947, the plaintiff agreed in writing with the defendant Brett, who signed as agent, that the defendant Bretschneider should be her exclusive agent to sell her home place in Bristol for $15,000 and that he should have 10% of the selling price as a commission. On December 11, 1948, Brett as agent for the plaintiff made a written agreement with Olive C. and Elvin W. Stoner of Massillon, Ohio, whereby they agreed to purchase the property for $15,000, $500 of which was then paid to Brett and the remainder was to be paid upon delivery of the deed on or before March 15, 1949. The agreement contained a clause that should either party "fail or neglect" to perform his part of the contract he should forfeit forthwith as liquidated damages to the other party a sum equal to 10% of the agreed price of sale "minimum forfeit not to be less than $200."
On March 14, 1949, the buyers mailed a letter from Ohio to the defendant Bretschneider and his wife stating unequivocally that they were financially unable to go through with the sale. The plaintiff then sued to recover the $500 deposit.
Further facts appear in the opinion. Transferred by Leahy, J.
Hazen K. Sturtevant for the plaintiff.
Malcolm H. Thompson for the defendants.
It is undisputed that the defendants failed to produce a customer financially able to buy the plaintiff's property and under these conditions our law is well settled that there can be no recovery. Philbrick v. Chase, 95 N.H. 82, and cases cited. The decision in Parker v. Estabrook, 68 N.H. 349, where agreements existed similar to those here is not authority for the defendants' position. There the broker was allowed to recover his agreed commission of $100 from a payment of $200 under a liquidated damages clause. However, the court was careful to say "There is no suggestion in the present case that the purchaser, Marston, was not pecuniarily responsible and able to answer according to his contract. When the vendor accepts the purchaser and enters into a contract with him, the solvency of the purchaser is to be presumed in the absence of proof." Id., 350. In the case before us there is evidence which the Court could reasonably believe flatly rebutting any presumption of the buyers' solvency. The agreement of the parties and their practical construction of it warrants the conclusion that the commission was to be payable only upon performance of the purchaser's undertaking. Furthermore the facts compel no finding of any waiver or estoppel in favor of the defendants. McCracken v. Insurance Company, 94 N.H. 474, and cases cited; Barclay v. Dublin Lake Club, 89 N.H. 87, 90. It follows the order is
Judgment on the verdict.
All concurred.