Livezy v. Miller

Irving, J., delivered the opinion of the Court. This was a suit to recover broker’s commissions for the sale of two houses on Howard street, Baltimore, one of ³³⁹ which was under a lease, and the other occupied by the owner, who is the appellee. It appears from the record, that about three years before the sale was effected the property was placed, for sale, in the hands of two brokers, the appellant and John K. White, each of whom was operating independently, and on his own behalf. Toward the last of February, 1882, Dr. Stayman (who was acting on behalf of Mrs. Stayman) was introduced to the appellee by the appellant.

The price asked of Dr. Stayman was twenty-five thousand dollars, (clear of two mortgages amounting to fifteen thousand dollars,) with a lease, to the seller, of one of the houses for five years at eleven hundred dollars a year. Dr. Stayman said he thought twenty thousand was all the property was worth, and, through his brother, Professor Stayman, offered that amount. This was positively rejected, with the statement that it was not as good an offer as had been made by Mr. W. W. Spence, (which offer from Mr. Spence was $23,500 and a lease at $1800 per annum, and had been procured by the agency of the appellant.) The plaintiff testifies that subsequent to the rejection of the Stayman offer, he had several interviews with the Staymans, and the matter was loft undetermined. The defendant testifies that when he rejected Prof.

Stayman’s offer, he asked him if that closed the negotiation, and that Stayman replied, “Yes.” On this point, Dr. Stayman testifies, that when the offer of twenty thousand dollars, which was made by his brother, was “indignantly” rejected, with the statement that he had been offered much more by Mr. Spence, he thought the whole property was dropped; and that, after this, negotiation was wholly and entirely abandoned; and “ he, in his own mind, abandoned all idea of buying the property.” He states that he got his brother to help him hunt up an investment for his wife, because he was out of health. Mr. John K. White testifies, that this property was placed in his hands about two or three years before the ³⁴⁰ sale was effected; that on the 12th or 13th of March, 1882, Mr. McSherry, (who was attorney for Mrs. Stayman,) called on him and said he had thirty thousand dollars to invest, and asked what property he had in his hands. Amongst other property, he mentioned the ajspellee’s property. McSherry then told him this property had been rejected.

Witness asked McSherry at what price it had been rejected, and was told $25,000, and a lease upon, one house, which appellee wanted, at $1100 per annum. Witness said to McSherry, that he thought Miller would lease at $1200, whereupon he was directed to see him. He called on Miller and informed him of what had passed between himself and McSherry, and Miller agreed to take a lease at $1200 per annum. Miller then fixed his terms and told White what commissions he would pay him.

On the 17th of March, White was authorized by Stayman to offer twenty-five thousand dollars for the property, and Miller to take a lease on one house for $1200 per annum, payable monthly; property to be unencumbered, and lease to run five years. White addressed a note to Miller stating that he was authorized by Dr. Stayman to offer to take the property on these last stated terms. The offer was accepted by Miller, and the matter was closed by the execution of a deed on the 27th of same month. McSherry testified that, having been asked by Mrs. Stayman’s son to look up an investment for his mother, he called on G-ilmor Hoffman and inquired for property, who told him of the Miller property on Howard street, which was the first knowledge he had of that property being for sale.

Hoffman told witness it was in Livezy's hands, and that he (Hoffman) was co-operating with him. Witness reported this property to the Staymans, and learned that they had already-declined to take that property at the price asked for it. Subsequently he had several interviews with Hoffman about the property, in one of which he asked what part of the commissions would be allowed to him, if he ³⁴¹ effected a sale. What reply was made is not stated.

Witness afterwards saw White and asked him what property he had. With other property, White mentioned this Miller property, and the terms. Witness told him that property had been rejected. White suggested that he thought Miller would agree to accept a lease at $1200 per annum for five years.

Witness then instructed White to learn if he would do so. He did inquire, and the negotiations resulted as stated by White. Witness received a part of White’s commissions. Upon this proof plaintiff and defendant offered prayers, all of which were rejected, except defendant’s sixth prayer, which was granted, limiting plaintiff’s recovery to two and one-half per cent, commissions on ten thousand dollars net value of property, (after deducting the mortgages,) in case of a verdict for plaintiff.

And in lieu of all the other instructions offered by either side, the Court granted the following instruction: “If the jury shall find that the plaintiff was employed by the defendant to make sale of his property on Howard street, in the city of Baltimore, and that the plaintiff called the attention of the witness, Stayman, to said property, and then informed the defendant that he had done so, and put Stayman and the defendant in communication about it, and that the property was sold to Stayman by the defendant afterwards, the plaintiff is entitled to receive such commissions as may have been agreed upon between the plaintiff and defendant ; if the jury find that any agreement was made as