Blake v. Stump

Irving, J., delivered the opinion of the Court. This suit is an action of assumpsit, in which commissions for selling the house of the appellant are sought to be recovered by the appellees. There are three exceptions in the record, the first and second haviqg respect to the testimony offered, and acted on by the Court, and the third being to prayers granted and refused. By the recitals in the first bill of exceptions, it appears, that ¹⁶⁶ the plaintiffs are real estate brokers in Baltimore City, and that the appellant owned a house in the city which he sold to Mrs. Julia O. Fowler for $15,000, subject to a ground rent of $1020, redeemable at any time after one year at six per cent., which sale was made by the appellant in person to Mr. Fowler, who was acting for his wife.

Mr. G*. W. Stump, one of the appellees, testified that Mr. Fowler told him he wanted to purchase a house, and asked him who paid commissions. He told Fowler that the seller did, and thereupon Mr. Fowler said “if that is the case see what you can get Blake’s house for.” Stump says, “I called at Blake’s office; told him I was a real estate man; asked him if I could sell his house; he said I could sell it, and his price was $40,000. ” After offering in evidence the letters to Blake containing the offers for the property, Mr. P. O. Dugan was produced as a witness, and testified that he was and had been for 23 years a real estate agent in the City of Baltimore, and was familiar with the customs and usages prevailing amongst real estate brokers in Baltimore City. The following question was then propounded: “If a broker is employed by* the vendor of real estate to find a purchaser for his property, and he does introduce to the vendor as a probable purchaser, a man who buys within a reasonable time, the broker is entitled to his commissions; the only qualification to this rule being the rule that where two or more brokers are employed to negotiate the same transaction, the broker who first succeeds is entitled to full commissions, and the others are not entitled to any.” To this question objection was interposed, which was overruled, and the witness answered, “that is correct sir, that is the rule!” The objection which was to the form of the question as stating a matter of law having been overruled, the first exception was taken.

The question as first put was leading, and on objection to it as stating ¹⁶⁷ a proposition of law, it was recast as quoted, and was more obnoxious to objection than at first, and the objection was renewed. As at last propounded it was no question at all. It is a bare statement of the law as established by usage in the estimation of the questioning counsel, without any interrogation or mark of it, except the statement of counsel that he “wanted to propound this question.” Calling it a question he only states what he understands the usage to be, and the witness replies “that is correct sir, that is the rule.” It needs no argument to demonstrate that such a method of examination is not permissible. As it was claimed that usage made the law of this case, the objection was properly stated that the question stated a proposition of law.

It was not the right way of eliciting from the witness whether any usage existed, and if so, what it was, and cannot be approved. The second exception was to the refusal of the Court to allow a question put to witness Eowler on re-direct examination on the part of the appellant, “whether he was at any time during these transactions in a position to pay $82,000.” It was objected to on the ground that it was new matter, and not brought out on examination in chief, and of course not cross-examined about. The rule is undoubtedly a good one that a party producing a witness must exhaust him on examination in chief, and must on re-examination be confined to the matter brought out on cross-examination as to what was proven in chief. It is, of course, in the discretion of the Court to allow the introduction of something forgotten or omitted in the examination in chief, if to the Court the purposes of justice seem to demand it.

There seems to have been no appeal to the Court for permission to ask it, and if there had been, and it had been granted or refused, there would have been no appeal from the exercise of the discretion. Strictly, the question was at that time inadmissible, and the Court ruled rightly. ¹⁶⁸ The plaintiffs’ first prayer was specially excepted to on the part of the appellant. This fact does not appear in the hill of exception; but the objection is embodied in the record as having been duly filed; and by agreement filed in this Court, it is provided, that the Court may consider that objection as if embodied regularly in the exception. The special exception is to the effect that there is no evidence of a custom such as is set out in the prayer; and that there was no evidence that thea appellee was employed to sell generally, the contention being that the evidence established that he was to sell at a fixed price, viz., $40,000.

The special language of the prayer excepted to is this, “if they shall find that according to the custom of brokers in said Baltimore City, the service undertaken by a broker so employed is simply to introduce to the seller a party who afterwards, within a reasonable time, actually purchases the property at a price acceptable to the seller,” &c. The use of the word “simply” in the connection indicated in this quotation from the prayer, it is claimed is misleading by omitting another essential element to entitle to compensation, viz., that such introduction must have been the procuring cause of the sale. It is the undoubted law, that the introduction must be the foundation of the negotiations and procuring cause of the sale. If it is such foundation and procuring cause, then the broker is entitled to commissions, notwithstanding the sale may have been finally effected by direct treaty of the parties without the broker’s intervention.

Jones vs. Adler, 34 Md., 440 ; Schwartze vs. Yearly, 31 Md., 270 ; Keener vs. Harrod and Brooke, 2 Md., 71 ; Attrill vs. Patterson, 58 Md., 251 . Eollowed up as it was by the second prayer of the plaintiffs, and the first, sixth and seventh of the defendant, all of which told the jury they must find the introduction was the procuring cause of the sale, we cannot see how the jury could have been misled by the putting of ¹⁶⁹ the first prayer of the plaintiffs. The word “simply” was unnecessary, but qualified and explained as it was by those other instructions we have mentioned, we do not think that was sufficient entirely to condemn the instruction. It was objected specially that there was no evidence to sustain this prayer as to the usage set up, but that cannot be sustained, for several witnesses testified to it.

It is true they did not use the word “simply” which is used in the prayer, but in such language as would justify the jury if they found a usage at all, to find one such as is mentioned in the prayer. It was also contended that there was no evidence of employment such as recited in the prayer, the appellant insisting that if there was any employment it was not general, but special to sell at a specified price. We do not think this objection well taken. The appellant denies in his testimony that he employed the plaintiffs at all; but one of the plaintiffs states what took place between him and the appellant in respect to the matter.

It was for the jury to say. whether the plaintiffs were employed and how employed. The statement of what took place as made by Gr. W. Stump is perhaps a little ambiguous, and under such circumstances it was right that the jury should say from the colloquium what the parties intended. As the jury might find that the price named was only a statement of what was desired for the property if it could be obtained, and not a statement that no less would be taken, and therefore not a restricted employment, it was entirely competent for the plaintiffs to put it to the jury to find according to their theory; and if the defendant desired the jury to pass on that question, he ought to have put his theory in the form of an instruction, which he did not do.

The jury might find and properly so that there was a general employment; whereas it might be that they would think that the agent was restricted as to price. If the latter, then, of course, according to ¹⁷⁰ the authorities the agent would not get commissions unless he obtained the specified price, or that was waived. Jones vs. Adler, 34 Md., 440 ; Mechem on Agency, secs. 965 and 966, and note. This prayer, however, is based on the theory of a usage, which usage, to be available as against the appellant, must be so notorious as to affect appellant with knowledge of it, and raise the presumption that he- dealt with reference to it.

Murray, et al. vs. Spencer, 24 Md., 520 ; Patterson vs. Crowther and Boone, 70 Md., 128 . If it was not thus notorious, actual knowledge must be proven to bind a party. There seems to have been no proof of general notoriety, and the only ground set out in the prayer for the assumption it makes, that he knew of it, is that the appellant “was a builder largely engaged in buying and selling real estate, and at times through the agency of real estate brokers. ’ ’ Because of this fact knowledge is imputed without calling on the jury to find that he did have knowledge of the custom, and dealt with plaintiffs with such knowledge. “At times ” the prayer recites he had dealt with and through real estate brokers. “At times"’ is indefinite. It may