Coppage v. Howard

Thomas, J., delivered the opinion of the Court. This suit was brought by the appellee to recover commissions for services alleged to have been rendered the appellant in procuring a purchaser of certain property of the appellant situated in St. Mary’s County, Maryland. The appellant was the owner of three farms in St. Mary’s County, and on the 14th of June, 1909, signed three contracts by which he authorized the appellee to sell the farms and agreed to pay him “a commission of five per centum out of the first payment on the gross amount of the sale,” with the express understanding that the appellant was to “incur no expense in the transaction” unless the sale was made. Three contracts were signed because there were three farms, and there is some confusion in these contracts, as they are printed in the record, in regard to the price at which the property was to be sold, but that confusion seems to be accounted for by the fact that while the clear understanding was that the appellant was to receive $20,000.00 for the three properties, and that they were to be sold for that sum plus the commissions of the appellee, separate contracts, on printed forms furnished by the appellee, were desired in order to secure a description of each farm.

It also appears from the con ⁵¹⁴ tracts that the teams of sale were to he all cash, or one-half cash and the balance to be secured by a mortgage on the properties, although there is also some apparent confusion in regard to that, growing out of the fact that there were three contracts and that the entire contracts are not set out in the record. The plaintiff testified that in June, 1913, the defendant telephoned him that he wanted $25,000.00 for the three farms, and that he would pay the commission of five per cent, on that sum if the sale was made for that price, and that he, the plaintiff, noted the change of price on the contracts and thereafter advertised the property for sale for $25,-000.00, and then said: “Finally, on April 23, 1914, I sold the three farms to Mr. W. Bernard Duke, of Baltimore City, for $25,000.00, one-half to be paid in cash, as soon as the title could be searched and papers prepared, and the balance to be secured by a mortgage upon the property, to be paid in five years. At the time of making the sale to Mr. Duke in Baltimore City, Mr. Duke was present, with his attorney, Mr. E. McClure Rouzer; and he, Mr. Duke, directed his said attorney to prepare the contract of sale in his, Mr. Rouzer’s, name, as attorney, and to sign the same as attorney. After the contract of sale had been prepared and signed, as directed by Mr. Duke, he gave it to me, with a certified cheek for $500.00, to take to the defendant for his signature to the contract, and to deliver the check to the defendant.” The contract referred to by the witness is as follows: “This agreement, made this 23rd day of April, 1914, by and between W. S. Coppage, of Drayden, St. Mary’s County, hereinafter called the Vendor, and E. McClure Rouzer, Attorney of Baltimore, Maryland, hereinafter called the Vendee, Witnesseth: “That the said vendor does hereby bargain and sell unto the said vendee and the said vendee does hereby purchase from the said vendor the following property situate and lying in St. Mary’s County, Maryland, property known as the Carthagina Farm, containing ⁵¹⁵ two hundred acres (200) more or less, property known as Cooper’s Creek Farm, containing three hundred (300) acres more or less, and property known as St. George’s Point Farm, containing two hundred and eighty-seven (287) acres, more or less, together wdth the improvements thereon and rights, ¡appurtenant thereto at and for the sum of twenty-five thousand dollars ($25,000), of which five hundred dollars ($500) have been paid prior to the signing hereof.

The balance of said purchase money is to be paid as follows: Twelve thousand dollars ($12,000) on or before the expiration of thirty (30) days from the date hereof, at which time a deed for the properties shall be executed at the vendee’s expense by the vendor, which shall convey the property by a good and merchantable title to the vendee. At the time of the execution and delivery of the deed aforesaid the vendee shall give, and the vendor hereby agrees to accept a mortgage for the balance of said purchase money, to wit, twelve thousand and five hundred dollars ($12,500) payable five years (5) after date with interest at six per cent. (6%), the said vendee to have the right to reduce or pay off said mortgage at any time at his option. “Taxes, insurance and other charges to be paid or allowed for by the vendor to the date of transfer. “Executed in duplicate. “As witness our hands and seals the day and year first above written. .................•........(Seal) (Signed) E. McClure Rouzer, Atty. (Seal) “J. C. Howard.” The plaintiff further testified: “I earned this contract of sale * * * with the certified check for $500.00 with me to the defendant’s house, on one of his farms in St. Mary’s County where he then was, ,on the Thursday or Friday following, and handed this contract to the defendant for his signature, exhibiting and tendering to him the check for $500.00.

I left him reading the contract of sale and went ⁵¹⁶ into the yard; and when I returned he expressed himself delighted with the sale, and said everything was all right. He then went to his safe, or some place, to look for his deeds, as he said. After some search he said he could not find them, and that he would not sign the contract that day, as he wished to find his deeds first and to notify his children, or to talk to his children about it; but that he would be in Leonard-town the following Tuesday, when he would sign the contract and settle up. * * * He was very much pleased that the sale had been finally made. The defendant came to Leonardtown the following Tuesday and said to me he would like to reserve the Oarthagina Farm, and asked me if I could get it off for him.

As Mr. Duke, the purchaser, was a friend of mine; I told him I thought I could do this for him. I telephoned to Baltimore, and they finally said they would let off the Oarthagina Farm, as suggested, for $6,000.00, making the price for the other two farms $19,000.00. When the defendant next came to Leonardtown I told him they would let him off with the Oarthagina Farm for $6,000.00, and he then asked if I could not get him off with the whole deal, as his children were crazy for him to keep the farms, and that he would pay the full commission of $1,250.00. I told him if he would do this I might be able to get him off.

After-wards he offered to pay me $1,000.00, saying this would be proper commission after taking off Oarthagina Farm; and after that he wanted to make it $950.00. I then refused his offer, and he has never paid me a cent. This was the last conversation I had with him. On his first or second visit to Leonardtown, after I had presented the contract of sale to him for his signature, according to my recollection, I told him Mr. Rouzer was acting as attorney for Mr. W. Bernard Dulce in purchasing the farm, and that Mr. Duke was the purchaser.

After my last conversation with the defendant in Leonardtown I received a letter from Mr. Rouzer, Mr. Duke’s attorney, dated May 19th, 1914, complaining of the delay in closing the deal; and I sént the defendant this letter, with a letter from me, dated May 20th, 1914; but he never ⁵¹⁷ returned the Rouzer letter to me as I requested. After that, early in June, 1914, I received a letter from the defendant saying that his farms were not for sale; and I promptly turned this letter over to my attorneys for their action.” The letters referred to by the witness as having been sent to the defendant made no disclosure of the fact that Hr. Duke was the purchaser. On cross-examination the plaintiff testified “that he told the defendant who the purchaser was after he had made one or two visits to Leonardtown; that this was his recollection; that the defendant may have asked the name of the purchaser at the time the witness juesented the contract of sale to him; that he does not recollect telling the defendant at the time who the purchaser was; that he did not think this was very important so long as the defendant was satisfied with the sale and was getting his price for the farms; that there might have been something said about a Connecticut man; that on previous occasions they had talked about people from Connecticut, from Cleveland and from elsewhere; that he did not know under what impression he left the defendant as to who the real purchaser was at the time he presented the contract of sale; that he did not know whether the defendant thought it was the Connecticut or Cleveland parties; * * * that he did not know if Mr. Duke is now ready to take the property; that he never carried Mr. Duke to see the defendant, and never told the defendant to commuunicate with Mr. Duke, nor did he tell Mr. Duke to communicate with the defendant; that he did not remember how many times the defendant asked him who was the purchaser; that he did not think it important the defendant should know who the purchaser was so long as he was perfectly satisfied with the sale and got his money.” He also stated that he made certain changes in the contracts showing that the price at which the property was to be sold was $25,-000.00, which he thought he had a right to do upon the authority of the defendant’s letter of June 20th, 1909, authorizing him to make corrections, and on re-examination tes ⁵¹⁸ tiffed that after defendant told him in June, 1913, that he wanted $25,000.00 for the three farms, he made a note of it on the three contracts, as stated in his cross-examination, and that he wrote nothing more and made no other change.

Mr. Duke testified: “I live in Baltimore City and am engaged in a number of enterprises. Mr. Howard, the plaintiff in this case, came to me perhaps a year before I become interested in the purchase of the Coppage farms in St. Mary’s County, offering to sell me these farms. He showed me his three contracts with Mr. Coppage. I knew something about the farms, although I had not been on them for some years; so I went down, * * * with Mr. Howard and looked them over before purchasing.

Finally I agreed to purchase the three farms for $25,000.00, according to the terms of the contracts of Mr. Coppage with Mr. Howard, and I instructed my attorney, Mr. E. McClure Rouzer, to prepare the contract of sale for Mr. Coppage’s signature, which he did, according to my direction, and signed it as my attorney, by my direction. I had a certified check made for $500.00 and delivered to Mr. Howard to be given to the defendant. I was ready, willing and able to comply with the terms of sale as stated in the contract. I directed Mr. Rouzer, as my attorney, to write the letter to Mr. Howard of May 19th, 1914, complaining of the delay, and was then and thereafter ready, willing and able to pay for this property.

I was always ready, willing and able to buy this property and to pay for it, and did not give up the idea until a month or so ago when I determined I did not care to live in the country. I could have paid cash for it, but I told Mr. Howard it would be perfectly satisfactory to take it on mortgage for one-half, according to his agreement with Mr. Coppage. I did not deal directly with Mr. Coppage, and neither saw nor spoke to him in the matter; nor did my attorney, Mr. Rouzer; all our communications and dealings being with Mr. Howard, Mr. Coppage’s agent. I had the title examined by a title company at my expense.

I did not care to be known in the deal at that time, and so instructed my attorney to ⁵¹⁹ sign the contract of sale. Some years ago I instructed Mr. Howard, the plaintiff, with whom I have had a number of real estate transactions, not to disclose my name in making the deals. I did not give him any particular instructions in this case.” The defendant testified as follows: “I live in St. Mary’s County and I am one of the judges of the Orphans’ Court of St. Mary’s County. I came to- St. Mary’s County in 1863.

I remember the contract of sale signed by Mr. Rouzer which Mr. Howard, tbe plaintiff, banded to me to sign. Mr. Howard bad called me up over tbe ’phone before that and said be bad an offer of $23,000.00 for tbe property. I told bim I could not consider anything less than $25,000.00. Tbe terms of tbe contract of sale, as presented to me, were $25,000.00, half cash, balance on mortgage to run for five years at o % interest.

I asked bim who tbe purchaser was, and each time be said he did not know. I thought from what be said that they were parties from Connecticut. I refused then to sign tbe contract. When I came to Leonard-town tbe following Tuesday, it being by duty as Judge of tbe Orphans’ Court to come to town every other Tuseday, Mr. Howard said to me be would report all off and no sale, as I told bim on tbe day tbe contract was presented to me and on tbis Tuesday that I would not sign it.

Tbis is tbe last conversation we bad as to tbe sale of tbe property. Later, when plaintiff made a claim for commissions, we talked about commissions and some matters of compromise, the plaintiff never told me tbe name of tbe purchaser, but led me to believe that it was somebody in Connecticut. I never’ knew Mr. Duke was tbe purchaser until today. Mr. Duke never communicated with me.

I listed tbe property so long ago it got out of my mind about listing. I improved tbe property at a cost of from five to ten thousand dollars; built barns, bouses and wire fences on the Cooper’s Creek Earm. I would bave taken $25,000.00 cash. I don’t think I put anything about mortgages in any of tbe agreements.

I objected to tbe terms of tbe contract, not knowing who tbe ⁵²⁰ purchaser was, and to the 5% interest on the mortgage. As I did not like the terms of the sale and didn’t know the purchaser, I wanted to speak to