Howard v. Street

Constable, J., delivered the opinion of the Court. This is an appeal from a judgment recovered by the appellee against the appellant, in an action for commissions on the sale of the appellant’s real property, known as the Verdant Valley Earm, and situated in both Baltimore and Harford Counties. The record contains eight exceptions to the rulings of the Court—-seven relating to- questions of evidence and one to the ruling on the prayers. Two prayer's were offered by the appellee and five hy the appellant.

The Court granted both of those for the appellee and also the third and fifth for the appellant, but refused his first, second and fourth. The first of the appellant’s asked the Court to direct, as a matter of law, a verdict for the defendant. It will be necessary, for a determination o-f the correctness or incorrect ²⁹⁵ ness of the Court’s ruling thereon to review the testimony so as to ascertain whether the plaintiff presented such a state of facts as entitled him to recover. The appellee owned and lived upon a farm adjoining that in question of the appellant, and had been an intimate friend of the appellant for a number of years.

He was a member of hunt clubs of the neighborhood and an ardent fox hunter. He had an extensive acquaintanceship among the hunting, class, and annually rented his house and premises to the hunt clubs for a month. The appellant for the last several years had only occupied his farm in the summer; living in Washington during the winter. Among the intimates of the appellee was Mr. Erank A. Bonsai, the owner of a farm in the Green Spring Valley, and himself an ardent hunter, having visited the appellee’s farm with the hunt clubs, and having for a number of years hunted over the farms of both the appellee and appellant, but who was not acquainted with the appellant.

Mr. Bonsai had on several of his visits expressed to the appellee his desire to own the farm of the appellant, and, in the spring of 1911 requested the appellee to get a price on it. The appellee wrote to the appellant for that purpose, but received no answer, and two weeks later wrote again, Mr. Bonsai in the meantime having inquired of him whether he had found out the price. In answer to these two letters, the appellee received the following letter, which forms the contract sued on in this case: “Washington, D. 0., May 16, 1911. “Mr. John Bush Street. “Dear Bush: “It was not my intention to ignore your question. Yes; Verdant Valley Farm is for sale. $35,000 is the price I place on it.

My assessment (including personalty) last year was nearly $25,000. I carry about that amount of fire insurance (paid in advance 2% years) ; possession given at once if desired. I would say there are over 80 acres in wheat and rye, 80 acres in corn, ²⁹⁶ 75 acres in grass, 100 acres in pasture, 40 acres in woods, 5 acres in oats, 7 acres in cowpeas. “I think the usual commission is 5%. I would he . glad if Rush Street would earn this commission. “Yours truly, B. R. HowaedA The appellee sent this letter to Mr. Bonsai and asked him to come up and go over the place.

About ten days thereafter Mr. Bonsai, with his wife and son, went to the farm of the appellee, and, after spending the night there, visited Verdant Valley Earm, and, in company with the manager of the place, went thoroughly through the house and buildings and over the land, spending about four hours in the inspection. The appellee immediately wrote the appellant of this visit and that Mr. Bonsai was interested in the place. On June 18th, following this visit, Mr. Bonsai, with two of his brothers-in-law, rode to the appellee’s home, whereupon the appellee called the appellant on the telephone1, who at that time was at his farm, and invited him over to meet Mr. Bonsai. Mr. Howard went over and the introduction was made, and, on the return of Mr. Bonsai and his friends, they all, including the appellee, called at Mr. Howard’s place.

The appellee further testified that he constantly, after the receipt of the letter, called to see Mr. Bonsai at his Baltimore office to talk over the matter of the sale with him, but that after the introduction by him of Mr. Bonsai- and the appellant, the negotiating was principally carried on directly between them, although he continued to call on Mr. Bonsai in reference to it. The appellee learned indirectly that the farm had been withdrawn from the market in October, 1911, and in March, 1912, received a letter from the appellant, advising him of the withdrawal. We will insert only the portion of the letter in any way bearing on this controversy: ²⁹⁷ “Yerdant Yalley Earm is not on the market. The understanding between us on a 5% basis, is over.

If, in the future, the spirit moves us to dispose of this property, I shall stipulate that the sum of five hundred dollars be the compensation to the agent who brings the purchaser. I make this statement, Rush, to avoid any possibility of a misunderstanding.” The appellee replied to this letter, to the effect that he was glad he was not going to sell the place, for too many of the old places were changing hands. In April he called on Mr. Howard in Washington, and in talking about the farm, Mr. Howard had said to him: “You know if Mr. Bonsai had bought the place last fall, you would have been entitled to a commision of seventeen hundred and fifty dollars.” In the latter part of August, 1912, the appellee and his wife spent the night at Mr. Howard’s at Kennebunkport, Maine, and the appellant then told him positively the farm was not for sale. In October the appellee learned that the appellant had sold the farm to Mr. Bonsai and wrote a letter claiming he was entitled to the commission.

The following is the letter in reply to that claim: “October 21, 1912. “Bear Bush: “By what process of reasoning you can reach the conclusion that I am indebted to you for any service in the recent sale, is beyond my comprehension. I had not intended replying to your note, as your contention seemed ludicrous; but I have no desire to be discourteous or unkind. How, Rush, I shall be brief and to the point. You had no more to do with the sale of Yerdant Yalley than a jack rabbit, and this you know "as well as I do.

A year or more ago the property was withdrawn for sentimental reasons, and I never expected to offer it again. Had it been sold at that time the chances are 2 to 1 that Mr. Bonsai would not have been the purchaser, and therefore you lost nothing by the withdrawal. ²⁹⁸ “I find among my letters, a copy of one written to you in March, containing the following: ‘Verdant Valley Earm is not on the market. The understanding between us and others on a 5% basis is over. If, in the future, the spirit moves me to dispose of .this property, I shall stipulate that the sum of $500 be compensation to the agent who brings me a purchaser.

I make this statement, Rush, to avoid any possibility of a misunderstanding.’ Have I ever asked you or ever remotely hinted that I would like you to interest yourself in the matter? Most emphatically no. Then, how in heaven’s name can you have the nerve, or rather gall, to ask recognition in the deal? You are dead wrong, old fellow.

Get it out of your system, and believe me, with kind regards, “Yours truly, “B. R. Howaed/'’ The price paid, forty-seven thousand dollars, included the personally. There was a reduction made in the original price, but this was taken off of the personal property, the real estate being sold for thirty-five thousand, the price placed on it with the appellee. The appellant testified that several people besides Mr. Bonsai were interested in the property, he having advertised it for sale in the papers. Mr. Bonsai had impressed him with the idea he might buy it, although he did not know anything about his financial condition.

A man from Harrisburg, by the name of Strayer, was also negotiating for the place. In response to a question as to how far negotiations had gone with this man, the appellant answered: “He had been down several times and seemed very well pleased, and I was certain that he or Mr. Bonsai would get it. Mr. Bonsai said if I would wait a bit he would handle it. I liked Mr. Bonsai very much from the time I met him.

I did not know Mr. Strayer, and I was altogether inclined for Mr. Bonsai to have it if he could possibly make it.” He further testified that for sentimental reasons he decided not to. sell, ²⁹⁹ and wired Mr.. Bonsai, withdrawing the property, fearing he would hear the next day from Mr. Bonsai, accepting the terms. He decided later to sell- and re-opened negotiations with Mr. Bonsai again about the middle of July, 1912, and completed the sale on the 15th of October, 1912. It was a conceded fact that between the time of withdrawal and the day of sale, the appellee did nothing towards bringing about the sale, other than what had been done by him previously- The question of when and under what circumstances a broker is entitled to commissions for his efforts in procuring or attempting to procure purchasers for real estate has been the subject of a great deal of litigation, both in this State and elsewhere.

Under the facts in this case the appellant contends that the appellee cannot recover unless there is evidence of bad faith upon the part of the appellant in withdrawing* the authority to sell from the appellee, and argues there is no evidence of such lack of good faith to submit the case to the jury. The appellee argues that under the decisions of this State the question of good faith is not the test of the right of recovery, but that if the appellee was the procuring cause of the sale, that then he is entitled to recover, notwithstanding the agency had been revoked. This contention is. based upon the decisions of this Court in Keener v. Harrod, 2 Md. 63 ; Jones v. Adler, 34 Md. 440 ; Attrill v. Patterson, 58 Md. 226 , and Blake v. Stump, 73 Md. 160 . It is argued that the principle contended for is established by the following language in the opinion of Keener v. Harrod, supra, and substantially followed in the other above cited cases and in many more which we could cite.

The Court said: “We understand the rule to be this (in the absence of proof of usage), that the mere fact of the agent having introduced the purchaser to the seller or disclosed names by which they came together, to treat, will not entitle him to compensation y but if it appears that such introduction or disclosure was the foundation on which the negotiation was begun and conducted and the sale made, the parties cannot afterwards, by ³⁰⁰ agreement between themselves, withdraw the matter from the agent’s hands, so as to deprive him of his commission.” And in Livezy v. Miller, 61 Md. 336 , it was said: “It is well settled by the authorities generally, and in this State, that a broker is entitled to his commissions if the sale affected can be referred to his instrumentality. It is also the established law that, after negotiations, begun through a broker’s intervention, have virtually culmulated in a sale, the agent cannot be discharged, so as to deprive him of his commissions. If the agent is the procuring cause of the sale made, he will be awarded his commissions.” The construction sought to be put upon the language of these cases by the appellee, completely ignores the rule of law applicable to the right of a principal to revoke the authority of his agent. . In the case of Attrill v. Patterson, 58 Md. 250 , quoted and approved in Smith v. Dare, 89 Md. 51 , it was held that “as a general rule an agent’s authority to act for his principal is always recoverable at the