Opinion
No. 3726.
Decided October 5, 1948.
A husband may be found to have been authorized by his wife to employ a real estate broker to sell the latter's property from the fact that when the broker called the wife concerning a customer the broker was referred to her husband who was "handling that matter." A real estate agent is an effective cause of a purchase and sale and is entitled to his commission therefor when his efforts have been sufficiently important in achieving a result for the accomplishment of which the seller has promised to pay him so that it is just that the seller should pay the promised compensation to him. The fact that an owner of real estate personally or through agents carries on negotiations that lead to the purchase does not deprive a broker, with whom the property was listed for sale, of his commission, where the latter is the effective cause of the sale. Nor is the broker's right to recover his commission barred by the fact that the mind of the customer is fully made up to buy the kind of property to which his attention is called by the broker or by conduct on the buyer's part to secure information and to negotiate. In an action by a broker to recover his commission on the sale of real estate, the fact that after the broker had called the property to the attention of the buyer the latter avoided the broker and attempted to prevent knowledge on the part of the owner that the broker had worked on the sale could be found by the jury to be due to the buyer's desire to save the broker's commission. The question of whether certain related actions should be tried together is one of fact for the trial court. A claim that an action was brought prematurely is the equivalent to a plea in abatement and is deemed waived unless raised prior to a trial on the merits. Where a requested instruction would have been correct if given and more specific than that given in the abstract, the trial court's refusal so to charge is not reversible error when the charge as given was within the comprehension of the jury. To be entitled to a commission on the sale of real estate it is not essential that the broker notify the owner of its claim for such commission before a binding agreement is made between the owner and the purchaser. In an action by a broker to recover a commission on the sale of certain property, the fact that the sale price, considered by the jury, included equipment as incidental to the real estate is immaterial where the entire property was the subject of the contract between the owner and broker.
ASSUMPSIT, in which the plaintiff real estate broker seeks to recover a commission for procuring the defendant Robert S. Raisbeck as a buyer of certain property of the defendant Rebecca A. Walker. This property was situated on Route No. 3 in Laconia and was known as the White Owl Cabins. The third defendant Ray A. Walker is the husband of Mrs. Walker. The case includes two other actions: one for tortious interference by defendant Raisbeck with the contractual relationship of principal and broker between the plaintiff and Rebecca A. Walker, and the other for conspiracy among the defendants to deprive the plaintiff of her commission. In each of the latter two actions a nonsuit was ordered subject to the plaintiff's exception. In view of the order in the action of assumpsit, these exceptions are not considered.
August 6, 1945, Mr. Raisbeck, then of Lynn, Massachusetts, being interested in buying a tourist cabin camp in New Hampshire, wrote for help to the State Planning and Development Commission. On August 14, the Commission sent him a copy of a folder called "Cabin Trails," which for the benefit of travelers and those seeking recreation listed certain tourist cabins in the northeastern states, including Mrs. Walker's. It also sent his inquiry to some New Hampshire real estate brokers, among whom was the plaintiff. August 17 the plaintiff wrote Mr. Raisbeck and suggested three cabin properties that were for sale including the White Owl Cabins, although this property was not mentioned by name and the owner's name was not given.
August 21, 1945, Mr. Raisbeck wrote the plaintiff to the effect that he was interested in one of the properties described and asked if it was on Route 3. This was in fact the White Owl. He stated that "if it looks worthwhile I will be up in that territory and call on you the week of Sept. 10." On the same date, he wrote to the publication "Cabin Trails" and inquired about cabin property for sale. The defendant Ray A. Walker was the publisher of this listing and on August 25 he replied urging that Mr. Raisbeck purchase the White Owl owned by his wife. In answer to the plaintiff's letter dated August 27 informing him that the large cabin property was on Route 3 and was the only property in the vicinity that combined cabins with a central dining hall, Mr. Raisbeck wrote her on August 31 that he would be in Laconia September 3 and would try to reach her by telephone. He had previously on August 28 written Mr. Walker that he would be in Laconia on September 2. Mr. Raisbeck negotiated with the Walkers directly and on November 7, 1945 executed an agreement for the purchase of the White Owl cabins.
On September 13, according to the plaintiff, Mr. Raisbeck telephoned her that he had bought the White Owl directly. Immediately after this talk the plaintiff saw Mr. and Mrs. Walker and on the same day her attorney brought this action. Various other facts bearing on the employment of Mrs. Williams and her part in the sale of the cabin property appear in the opinion.
Before the trial the defendants moved that the three actions be tried separately. This motion was denied subject to exception. Trial by jury with a verdict for $5,500 against Rebecca Walker. In the assumpsit action the plaintiff was nonsuited as to Ray A. Walker subject to the plaintiff's exception. The motions of Mrs. Walker (hereinafter called the defendant) for a nonsuit and for a directed verdict were denied subject to her exceptions. Similarly her motion that the verdict be set aside was denied subject to exception. She excepted to the failure of the Court to give certain requests. After the jury retired, in answer to a question by it the Court instructed that the total sales price to be considered in computing the commission was $90,000, subject to the defendant's exception. The above exceptions were reserved and transferred by Wheeler, J.
Richard F. Upton, Robert W. Upton and Thomas J. McIntyre (Mr. Richard F. Upton orally), for the plaintiff.
Nighswander Lord (Mr. Nighswander orally), for the defendants.
The plaintiff was entitled to have the case go to the jury if there was any evidence that she was employed and that she was the effective cause of procuring Mr. Raisbeck as a buyer.
The plaintiff's secretary testified that the last of July or the first of August, 1945, she obtained a listing of the White Owl property for sale from Mr. Walker. The plaintiff stated on the stand that after the listing she had the following conversation with Mrs. Walker: "`How is business?' She said, `Fine.' I said, `Have you anybody interested in your cabin property?' She said, `We have had a few people.' I said, `Good. We are going to do everything we can.' She said, `Good. Keep plugging.'" With respect to the authority of her husband, Mrs. Walker testified that she told Mrs. Williams when the latter claimed on September 13 that Mr. Raisbeck was her customer: "Mr. Walker has handled that matter, and you had better talk to him on it." This was evidence from which it could be found that the defendant personally authorized the employment of Mrs. Williams and also that she authorized her husband to employ her.
If Mrs. Williams was the effective cause of inducing Mr. Raisbeck to purchase the White Owl, then she performed her contract and earned her commission. Restatement, Agency, s. 448. It is impossible to measure in quantitative units the efforts necessary to constitute the effective cause. This is not the case of where more than one broker is employed and seeks a commission. The fact that the owner personally or through agents carries on the negotiations that lead to the purchase does not deprive the broker of his commission. Morrison v. Hall, 78 N.H. 48; Philbrick v. Chase, ante, 82. Nor is the plaintiff barred by the fact that the mind of the customer is fully made up to buy the kind of property to which his attention is called or by conduct on his part to secure information and to negotiate. The meaning of effective cause for the purpose of ascertaining whether or not a broker has earned his commission has been stated as follows: "An agent is an `effective cause' . . . when his efforts have been sufficiently important in achieving a result for the accomplishment of which the principal has promised to pay him so that it is just that the principal should pay the promised compensation to him." Restatement, Agency, s. 448, comment a. This describes conduct that is more than merely trifling.
By her letter of August 17, the plaintiff was the first, it could be found, to inform Mr. Raisbeck that the White Owl was for sale. Although this letter did not give the name of the cabins or the owner, the similarity of the description with that in "Cabin Trails" served to identify the property. The letter did specify the number of cabins, the price, the dining room, the recreation hall and the shore frontage. Mr. Raisbeck testified that if he had studied the description given in this letter and compared it with that of the White Owl, he would have known the property to be the same. His letter of August 21 indicated that he was interested and his inquiry whether the property was on Route 3 could be found to show that he had identified it with the White Owl.
A broker secures a customer if he informs him of the property and of the fact that it is for sale, so that as a result the purchaser is led to the seller. "P promises A a commission if he will find a purchaser for P's land. A advertises, and the advertisement is seen by T who, in response thereto, goes directly to P and consummates the transaction without A's knowledge. A is entitled to his commission." Restatement, Agency, s. 448, comment d, illustration 1. See also, Morrison v. Hall, supra; Philbrick v. Chase, supra. The possibility or the probability that the buyer would have purchased the property without the efforts of the particular broker is not decisive as a matter of law that the broker is not entitled to his commission. At the most they are entitled to consideration in determining the importance that should be attached to the broker's efforts.
Not only is there a sequence of events at least consistent with the claim that Mrs. Williams informed and interested Mr. Raisbeck of and in the White Owl cabins, but also there is evidence of consciouness [consciousness] on his part that her efforts were of such importance that she had earned a commission. Her undertaking was to induce some one to become a customer for the defendant's cabins. Consciousness on the part of the buyer that she was or might be the effective cause of his willingness to buy would be relevant evidence of the fact of her being so. Mr. Raisbeck did not reach Mrs. Williams by telephone on September 1, 2 or 3 although in Laconia on those dates and his letter of August 31 to her indicated that he would try so to do. When he asked the plaintiff's secretary over the telephone on September 12 to have Mrs. Williams call him at the White Owl, he said, according to the secretary: "Would I be sure to tell her if she called him at the White Owl cabins not to mention anything about business." On September 13, Mr. Raisbeck called the plaintiff by telephone. She testified the following conversation took place: "He said, `Mrs. Williams, I don't want to take any more of your time because I bought the White Owl directly.' I said, `Mr. Raisbeck, I don't understand how you figure you can do that.' He said, `I have bought it, and there is nothing you can do about it. However, I am going to make a change in the insurance when I take it over next April and I will see at that time that you are taken care of.'" This avoidance of Mrs. Williams and attempt to prevent knowledge on the part of Mr. and Mrs. Walker that she had worked on the sale could be found by the jury to be due to a desire on the part of Mr. Raisbeck to save the broker's commission. The defendant's motions for a nonsuit and for a directed verdict were properly denied.
The exception to the order that the three actions be tried together presents no question of law. Carbone v. Railroad, 89 N.H. 12, 19, and cases cited.
The defendant requested an instruction that if Mr. Raisbeck was not able and willing on September 13, the date of the writ, to purchase the property on terms satisfactory to the owner, the plaintiff was not entitled to recover. This claim was that the action was brought prematurely. It was the equivalent of a plea in abatement and not of one in bar. Without discussing the evidence upon which the claim is based, it is sufficient to say that it was waived since it was not raised before going to trial on the merits. Welch v. Miller, 210 Pa. 204; 1 Am. Jur. 22.
By her sixth request the defendant asked that the jury be instructed that if the purchaser made his contact by writing to "Cabins and Trails" in response to a statement in that publication and not in response to the plaintiff's letter of August 17 and became interested because of Mr. Walker's reply and not because of plaintiff's said letter, the verdict should be for the defendant. Such an instruction would have been correct and would have been more specific than the abstract propositions of law given by the Court. The Court might well have instructed substantially in this manner, but it was not reversible error to refrain from doing so. Practically, the charge of the Court that "the plaintiff's undertaking was to produce a customer willing and able to buy," was not ambiguous. It was within the comprehension of a jury. This contention of the defendant's could well have been forcibly argued by her counsel in his closing argument to the jury and undoubtedly was. It was within the discretion of the Trial Court whether to apply the legal principle to the evidence stated. Colby v. Lee, 83 N.H. 303, 307; Philbrick v. Chase, supra, 86. There is no reason to doubt that the jury correctly applied the legal principles stated.
The defendant relies on the case of Bjork v. Company, 79 N.H. 402, to substantiate her position on this point. In that action, which was a master and servant case, the plaintiff claimed that he was injured by the jumping back of a piece of wood and that he was not warned of this risk. The Court erroneously submitted to the jury that the accident may have happened in some other way than that in issue. To offset this error it was held that the defendants were entitled to a specific instruction that unless the accident happened because of the jumping back of the wood as claimed by the plaintiff, a verdict should be returned for the defendants. In the present case no corresponding error in the charge has been pointed out.
The defendant's request No. 13 that the plaintiff could not recover unless she notified the defendant of her claim for a commission before binding agreement was made was erroneous. In Philbrick v. Chase, supra, 85, it was stated that the broker's right to a commission is not affected by the owner's lack of knowledge of the part played by the broker unless the owner "was prejudiced in some way by the ignorance . . . and such ignorance was due to no fault of her own." "Having promised the broker a commission, the principal ordinarily should know that the appearance of a customer may have been caused by the broker, and to avoid liability for payment he should make inquiries of the broker." Restatement, Agency, s. 448, comment f. The defendant did not have the right that this request be given in the form stated. Moreover, no binding agreement was made until November 7 and the defendant knew of the plaintiff's claim on September 13.
In reply to a question by the jury after it had retired, the Court instructed that the price to be considered in computing the commission was $90,000. It was not disputed that the property that was the subject of the contract with the plaintiff, if there was a contract, sold for this sum of money. The fact that some of it consisted of equipment as incidental to the real estate is immaterial.
Judgment on the verdict.
All concurred.