On May 19th, 1924, the defendant executed a printed form of contract constituting the plaintiff his sole agent for the sale of his real estate "for a period of twelve months and thereafter until termination at the expiration of a ninety days' written notice from the owner," and providing, further, that the plaintiff should receive a commission upon "any offer accepted by the owner during the life of this contract, whether the proposed purchaser is introduced to said owner by said agent or not." On June 11th, 1926, the defendant sold the property on his own account, and, though he had never given the plaintiff notice of the termination of the contract, he claimed that he was relieved from obligation to pay a commission because, on the back of the paper, when folded for filing purposes, appeared, among other notations, the printed indorsement, "Contract expires," followed by the typewritten insertion, "August 19th, 1925." The plaintiff offered proof that this was a mere office record, and the defendant's evidence tended to establish, at most, that it also appeared on the copy of the contract which he claimed to have received on the same day that the original was executed. Held:
1. That the jury could not reasonably have concluded that the indorsement was intended to be a part of the contract; and that the plaintiff was entitled to his commission. 2. That, under his general denial, it was not open to the defendant to claim either that the contract as executed was the result of fraud or mistake, or that the plaintiff had orally waived the requirement of written notice.
Argued October 30th, 1928
Decided December 18th, 1928.
ACTION to recover a commission alleged to have been earned by the plaintiff in the sale of the defendants' real estate, brought to the City Court of Meriden and tried to the jury before Dunne, J.; the court directed a verdict for plaintiff against defendant Joseph Polak and from the judgment rendered thereon that defendant appealed. No error.
Lewis J. Somers, for the appellant (defendant Joseph Polak).
Frederick S. Harris, for the appellee (plaintiff).
On May 19th, 1924, the plaintiff and the defendant Joseph Polak executed a contract by the terms of which Polak, named therein as the "owner," constituted the plaintiff "the sole agent of the said owner for a period of twelve months (and thereafter until termination at the expiration of a ninety days' written notice from the owner) to effect a sale" of the owner's farm in Yalesville. The contract further provided that the plaintiff should use diligent efforts to effect a sale and that he should "receive five per cent of any offer accepted by the said owner during the life of this contract, whether the proposed purchaser is introduced to said owner by said agent or not." The defendants are husband and wife, but the contract which is the basis of this action was executed by the plaintiff and the husband Joseph Polak only, and the verdict was against Joseph only. The defendants sold their farm on or about June 11th, 1926, prior to which time they had not given the plaintiff any notice of the termination of the contract in question. These facts were not in dispute, and the only substantial question in issue upon the trial was whether this contract was still in force at the time of the sale of the farm. In the absence of the ninety days' notice of its termination, the contract was in force at the time of the sale unless it could be found that a notation upon the back of the contract was a part of it and could be held to be controlling as to the date when the contract terminated. The contract executed by the parties was a printed form labeled "Sole Agency Contract," the blanks in the form being filled in, partly with typewriting and partly with pen and ink, with the names of the parties, description of the property, the price and other details. Upon the back of the contract, folded for filing purposes, was a printed form calling for entries descriptive of the character of the paper, such as the name and address of the owner of the property, its location, the price asked and other details. One of the items on this printed backing of the contract read, "Contract expires," and the blank following it was filled in with the date August 19th, 1925, in typewriting. The entries upon this backing of the contract are quite obviously of the character of office memoranda commonly made upon documents indorsed for filing. No reference to them is made in the body of the contract and nothing appears anywhere upon the paper which would indicate an intention to make these indorsements a part of the contract itself. Evidence was offered by the plaintiff that these indorsements were made upon the back of the contract by the plaintiff's son, who had charge of the office records, after the contract was executed and as a part of the office record, and that he entered the date, August 19th, 1925, as a record of the date when the contract would expire if the ninety days' written notice was given. This was not contradicted by the defendant, who did not claim that this entry was upon the back of the contract at the time it was executed. The parties agreed that this entry was upon the back of the defendant's copy of the contract when he received it, the defendant, however, claiming that he received a copy of the contract the day it was executed, while the plaintiff testified that he mailed the defendant a copy two or three months after the date of its execution. There was no evidence from which the jury could reasonably have found that the parties intended to make this indorsement on the back of the contract a part of the contract itself.
The defendant testified, over the objection of the plaintiff, that during conversation with the plaintiff, at the time the contract was executed, defendant objected to signing a contract for a year, but finally consented to one which would terminate in fifteen months with no written notice, and that the plaintiff said he would put that in the contract. The contract was not so drawn, but the defendant is not seeking to have it reformed. His answer is a general denial and, under the pleadings, whether the contract as executed does not, because of fraud or mistake, state the real agreement of the parties was not in issue. The defendant also testified that he told the plaintiff in July, 1925, that if the latter could not sell the farm he would get somebody else to sell it and that the plaintiff told him to go ahead, that he would be glad to have him do so. This it is claimed by the defendant constituted a waiver by the plaintiff of the ninety days' written notice required to terminate the contract, and terminated the contract at that time. Such defense cannot be taken advantage of under a general denial, but should have been specially pleaded. Boston Lumber Co. v. Pendleton Bros., Inc., 102 Conn. 626, 633, 129 A. 782; 13 Corpus Juris, 738.
The plaintiff's evidence that he had duly performed his part of the contract was uncontradicted, and he was entitled upon the case presented to a directed verdict in his favor for the amount of the commission agreed upon.