Carpenter v. Davies

Smith, J., delivered the opinion of the Court. In this case, unlike many we have had, there is no question but that the appellees, Leslie Eugene Davies et al. ¹⁷⁵ (the Broker), were the procuring cause of the sale of land of the appellants, Howard S. Carpenter et al. (the Seller). The Seller listed his land with the Broker’s agent. The Broker brought the land to the attention of the ultimate purchaser with whom he had had prior dealings.

This was the first knowledge the purchaser had that this tract was for sale. The purchaser directed the Broker to communicate an offer to the Seller at less than the listing price. The buyer gave some indication to the Broker that he would go higher. The Broker encountered some difficulty in making contact with the Seller to advise him of this offer.

The buyer was so anxious to buy that he went to see the Seller. When the Broker was finally able to reach the Seller by telephone the buyer was in the Seller’s office but did not realize the call was from the Broker. He did understand that someone desired to purchase the property. He then raised his offer to one of $50 per acre more than the listing price ($50 less than the amount then requested by the Seller).

A sale was then effected upon the basis of this offer. This suit was brought when no commissions were paid by the Seller to the Broker on this sale. The case was heard without a jury. The trial court rendered a judgment in favor of the Broker for commissions based upon the original listing price.

The Seller, in his attempt to avoid payment, has alleged that the Broker forfeited his right to commissions because (1) he “breached his fiduciary duty as broker-agent for [the Seller] to obtain ... by the exercise of his diligence and zeal, the most advantageous bargain possible under the circumstances”; (2) he failed to inform the seller of any facts which might affect his actions or judgment; (3) he failed to act in good faith to further the interests of his principals; and (4) he “breached his fiduciary duty as broker-agent for [the Seller] to apply his skill, diligence and zeal for the exclusive benefit of his principals.” His final argument is that “the listing agreement was void and unenforceable because against public policy and illegal.” The short answer to the first four contentions is that the ¹⁷⁶ trier of fact was not persuaded by the evidence adduced by the Seller, stating, “[W]e are not satisfied that there is sufficient evidence of fraud or breach of his fiduciary duty to defeat his claim for that commission against the sellers.” This was after an earlier statement, “I am not satisfied that Mr. Jamison’s evidence shows anything about Mr. Davies’ conduct that leads me to believe that he violated his duty. Perhaps it is susceptible of that sort of interpretation but I think it is equally susceptible of an innocent explanation than one found on the duty on his part to inform himself, not alone his Listing seller but from any source that was available to him or brought to his attention as to what the true facts about the title of this property were.” Maryland Rule 886 is applicable. The trial judge