Mullineaux v. Voltz

Pattison, J., delivered the opinion of the Court. The appellant, John W. Mullineaux, sold for the appellees, Henry Yoltz and wife, their farm in Carroll County with their personal property thereon, consisting of live slock and farming implements, to Howard Herring and wife, for the sum of six thousand dollars. On the 13th day of August, 1923, a written contract of sale was executed therefor by Henry Yoltz and Howard Herring, by the terms of which twenty-five dollars were to be paid in cash upon the execution of the contract and the balance of the purchase money was to be paid or secured as follows: one thousand dollars in thirty days, two thousand four hundred and seventy-five dollars within six months, and the balance was to be secured by mortgage upon the farm sold for the amount of such balance. It was further ¹¹⁶ agreed in. the contract that Herringl and wife should execute unto Voltz and wife a deed, to he held in escrow, conveying unto them a leasehold dwelling house property on York Eoad to secure the fulfillment of the terms of the contract on the part of the purchasers.

The twenty-five dollars were paid in cash and the above mentioned deed for the leasehold property was executed by Herring and wife and delivered to Voltz, and possession of the farm was given to the purchasers. On the 15th day of November the vendors and purchasers, with the appellant and the attorney of the vendors, met in Westminster, Md., at the office of Mr. Hoff, who held a mortgage upon the farm for twenty-five hundred dollars. At this meeting Herring disclosed the fact that he and wife had on the preceding day sold and conveyed to another the York Eoad property which they had previously sold and conveyed unto Voltz and wife, but the deed for which Voltz had not placed upon record, and from the amounts received therefor he, Herring, could not pay more than five hundred dollars upon the payment of one thousand dollars, which was due at that time. It was then suggested by Voltz that the mortgage that was to be given upon the farm should be increased to three thousand dollars and that in such mortgage the personal property upon the farm be included.

This suggestion, however, did not meet with the approval of Herring, and after some further conversation Voltz announced “the matter would not be closed and Hoff thereupon remarked, ‘Gentlemen, the whole deal is off.’ ” Thereafter the appellant demanded of Voltz the payment of three hundred dollars .as commissions for the sale made by him of the farm and personal property thereon, and upon the defendant’s refusal to pay it the suit in this case was instituted, which resulted in a judgment for the defendant. At the conclusion of the evidence the plaintiff offered three prayers. Of these two were granted, each with modifications, and the other was rejected. The rulings of the court upon the prayers constitute the only exception found in the record. ¹¹⁷ By the first prayer of the plaintiff the court was asked to instruct the jury that upon finding the facts stated the-plaintiff was entitled to recover the usual broker’s commission of five per centum upon said sale price of six thousand dollars and the verdict should be for the plaintiff.

In his second prayer he asked that the jury be told upon their finding said facts that the verdict should be for such “a sum as they shall find the plaintiff is entitled to recover-as usual broker’s commission as testified to.” The court modified this prayer by substituting for the words “a sum