Taft v. Bayne

Boyd. O. I., delivered the opinion of the Court. This is an appeal from a judgment rendered in favor of the appellee against the appellants for commissions alleged to be due the former by the latter for procuring a purchaser ⁶⁸⁴ -of a farm owned by Mrs. Taft, located in South Towson, Baltimore County. There are sixteen bills of exception in the record, presenting rulings on evidence, and one embracing those on the prayers.

The plaintiff is not a real estate broker, but is a barber in Towson, in a shop owned by William M. Koerner. In order to show the basis of plaintiff’s claim, we will state the evidence fully reflecting on that. The plaintiff testified that about the fifteenth of April, 1921, he cut Mr. Taft’s hair in the barber shop, where he had a conversation with him. He was asked to tell what that conversation was, and replied: “Well we were talking about property for sale, and he said to me, ‘Mr. Bayne,’ he said, ‘I have a property for sale down on the York Road at Rodgers’ Forge.’ Of course I knew the property very well, I said, ‘All right, Mr. Taft,’ and he said, ‘if you can sell that property I will give you commissions,’ and I asked him, ‘how much you want for it.’ And he said he would like to get thirty thousand dollars for it, and I said, ‘how many acres,’ and he said, ‘fifteen, and buildings are in good condition and has nice fruit on it,’ and I said, ‘all right, Mr. Taft, if I can- sell it for you I would be willing to do it.

Of course that money looks pretty good to me,’ and in about one day or so Mr. Held came in there and he said, ‘I had a man over around Ruxton and places-’ ” Objection was made by the defendants to the answer but the court permitted it to be given with the understanding that Mr. Held would follow it up. The witness then proceeded: “He said that he had just had a man over through Ruxton looking at a place where he could put seven or eight telephones, and he said that he didn’t find any place over there to suit this gentleman, and he said if he could get any place he was going to let him know and T said, ‘Robert, I have a place on the York Road which would suit Mr. Clifford’ and I said, ‘If you can sell it, or get in connection with Mr. Clifford, I will give you part of my commission that Mr. Taft promised me,’ and he said, ‘all right, T will go out and call ⁶⁸⁵ tip’ and lie goes out and calls up Mr. Charles Earp, and ho came in and said he called up Mr. Earp, and Mr. Earp was to let Mr. Clifford know.” A motion to strike out the answer as hearsay and not responsive to the question was made, hut overruled, and for some reason which is unexplained, that was repeated. The witness was then asked: “Did Mr. Held report to you any more the result of this talk with Mr. Earp ?” which was objected to, but the witness was permitted to answer and said: “He said be had been talking with Mr. Earp and that Mr. Earp said that he would let Mr. Clifford know in the morning, and in a couple of days afterwards Mr. Held came over there and said that Mi". Earp had called him and said Mr. Clifford would he out to see us on Wednesday to look at the property, and we waited for him Wednesday and he didn’t come, and the next day or so afterwards Mr. Held came and told me Mr. Clifford had been to Mr. Taft’s.” A motion to strike that out was overruled and the witness further testified: “That after Mr. Held reported to him that Mr. Clifford had been to the Taft property, he immediately got in the machine and went down to see Mr. Taft, and he asked him if Mr. Clifford had been out to see him and Mr. Taft said yes.

Mrs. Taft was not present at that time; that Mr. Taft said, ‘yes, Mr. Clifford has been here,’ and witness said, ‘I am the gentleman that notified Mr. Clifford about your place being for sale’ and about that time Mrs-. Taft came out ou the porch and he turned around and said to Mrs. Taft, ‘This is the gentleman that sent Mr. Clifford out to see us about the property,’ and she didn’t say anything at that time and turned around and went on the other end of the porch and we talked there for a co-uple of minutes and Taft said to witness-, ‘how did Mr. Clifford come to come out here with Mr. Steffey,’ and witness said, ‘I don’t know anything about that.’ ” He was asked “Who is that ?” and replied, “The real estate-man, Mr. Steffey, and he asked me, how did he get in touch ⁶⁸⁶ with him, and I said, ‘Mr. Taft, I don’t know about that,’ and he said, ‘Very well, I have signed all my rights over to the real estate broker,’ he said, ‘I have not anything to do with it,’ he said, ‘If you want your commission you will have to get it through Mr. Steffey.’ ” The witness then went on to testify that he had not collected any commission on the sale, that the property had been sold to Mr. Clifford, that he didn’t know the purchase price. He was then asked, “That day that you were at Mr. Taft’s was .anything said about the property being sold at that time?” and replied, “Well, he said he didn’t know if Mr. Clifford was going to take it or not, but that morning I went down there Mr. Held told me Mr. Clifford would be out there on the following Saturday.” A motion to strike out that part of the answer of the witness as to what Mr. Held said was overruled. The witness further testified on cross-examination that the time was in April, he thought on Friday, the 22nd, about a week following the time Mr. Taft was in the barber shop.

That he did not see Mr. Taft any more after that, that he went there a couple of times after that but no one was at home; that the Friday he went there was the day before the Saturday that Mr. Held had reported that Mr. Clifford was going to return, that he told Mr. Taft he would be out on the following Saturday; that the sale had not been actually consummated when he was talking to Mr. Taft. He said he was not a licensed real estate broker; that he was a barber, that he had not seen Mr. Taft or communicated with him since April 22nd; that he did not send a bill to him for his commission because Mr. Taft said he did not see where he had any right to pay him, that he should get his compensation from the real estate agent, Steffey and Company; that he did not know Mr. Clifford, the purchaser, never savr him until the day he testified ; that he did not claim to have taken any part in negotiating for the sale for it with Mr. Clifford, didn’t carry on any of the negotiations between Taft and Clifford himself; that ho used his friend, Mr. Held, that he was acting as his agent; ⁶⁸⁷ that Mr. Held knew Mr. Clifford, and he, Bayne, used him as his agent, that he didn’t know what the property actually sold for eventually. Harry T. Campbell testified that he was in the barber shop when the conversation between Mr. Bayne and Mr. Taft took place. II e said: “I was sitting there waiting to be shaved, and I heard them talking about real estate and Mr. Taft said, ‘Soli my place or find somebody to buy it, and there is $1,500 in it for you, and Mr. Bayne asked him how many acres and 1 didn’t pay any attention,’ but I heard him say he would give him $1,500 if he could find anybody to buy it.” William M. Koemer, the proprietor of the barber shop; said that Mr. Taft offered Bayne fifteen hundred dollars commission, and that a couple of months prior to that he offered him the same if he sold the place; that he did not remember whether Mr. Taft told Bayne the purchase price, but he had told him (Koemer) before that he wanted thirty thousand dollars for it, and Bayne was to get fifteen hundred dollars.

Hubert I. Held .said he knew Mr. Clifford when he saw him, had been introduced to him, met him at Huston, that he met him through Mr. Earp; who was chief clerk to the superintendent of maintenance for the Baltimore Suburban District of the O. and P. Telephone Company. The witness testified: “Mr. Earp called me up and said, ‘Bob; I got a gentleman coming out there to buy a place and he wants, to get a place where he can get seven or eight telephones,’ and I said, ‘All right,’ and he said, ‘Can you meet him. at Towson,’ and I said, ‘Not now, I am at Ruxton.’ He says; ‘He has a place in view at Ruxton and he will meet you,’ and I said, ‘All right, meet me at the bridge,’ and I don’t know whether it was in the morning or in the afternoon, and he said, ‘Wait there and he will be out there,’ and I said, ‘All right,’ and I waited and Mr. Clifford and his wife came out and I met them at the store and took them around to see Mr. Allison’s place at Melvern Avenue, and he looked at it and didn’t like it, and asked if 1 knew of any other places, and I think somebody told him ⁶⁸⁸ about another place at Riderwood, and I said Sheriff Green’s place isi for sale.” He said that a day or two after that, it might have been the same day, he went in the barber shop to get shaved and they were talking about real estate and he asked “Baynie,” as he called him, if he knew any place around Towson, “and he said what kind of a place ?'” and I said Mr. Clifford wants-a small place of about ten or fiften acres, and he said he would not need thirty, and he said, “I know a place that will suit him.” That was objected to, but the court permitted the question and answer to go in. The witness then answered: “And ‘Baynie’ said Mr. Taft’s place down the York Road. I said, ‘All right, I will tell him.’ That was dinner time.

I don’t know what date it was. That was dinner time. I went around to the office and I called Mr. Earp' and told him and he said, all right, ‘I will tell Mr. Clifford,’ so that day some time Charlie Earp called me back.” He was asked: “That was the day following your conversation with Mr. Bayne?” and replied, “Yes, it might have been the same day; the same day, I am sure it was, that I called Charlie Earp- and he called me back; I told him that I knew a place that I thought would suit Mr. Clifford and he said, ‘Where is it-?’ and I said, ‘South Towson, right across from Rodgers’ shop-,’ and he said, ‘Can you give him telephones there ?’ and I said, ‘I don’t know, I would have to look it up,’ and I went back to the office and he called me up again and said, ‘Did you look that vicinity up,’ and I said, ‘Yes, I think we can give it to him,’ and he said, ‘Tell me where it is,’ and I said, ‘It is at Rodgers’ shop; directly across from Rodgers’ shop;’ and he said, ‘All right, Mr. Clifford will come out.’ ” Held said that he told the appellee that- Mr. Clifford was coming out to look at the property; that he (Held) went down with the plaintiff to the Taft property, but he did not hear what was said. He was asked by counsel for the plaintiff, “Is that all the conversation you had with Mr. Earp ?” and ⁶⁸⁹ replied: “Mr. Earp said Mr. Clifford had bought the property and go down to see what it will take to give him service.” On cross-examination he said that he was trouble man for the telephone company, that Mr. Earp was chief clerk to the superintendent of maintenance, that he still worked for the telephone company; that he first saw Mr. Clifford as a result of getting orders from the telephone company; that it was the telephone company’s business that took him around with Mr. Clifford to see the places.

That he was not interested at all in the commissions; that Mr. Bayne said if he sold this prop^erfcy he was going to get a machine.” And afterwards stated that Bayne said he would give him two hundred dollars. [fc was agreed that if Charles Earp was present he would testify as follows: “That on or about April 20, 1921, Robert W. Held, of Towson, called him by ’phone and stated that property of the defendants was for sale located at Rodgers’ Forgo, Towson, and had been mentioned to him (Held) by the plaintiff, that he then called and brought it to attention of J. Lawrence Clifford, who afterwards purchased the same; that he had no further negotiations with said Clifford or said sale: and that he makes no claim for commission on said sale, that he does not know what influence, if any, his part in the matter had on said Clifford.” The defendant, William C. Taft, was called by the piaint iff ¡md testified that his wife was the owner of the property spoken of; that it- was sold some time in May to J. Lawrence Clifford for twenty-six thousand five hundred dollars. The deed was to James Lawrence Clifford and Mary Ann Clifford, his wife, and dated June 3, 1921. The plaintiff rested and William C. Taft was called on behalf of the defendants. He testified that he had only known the plaintiff as a barber in Koerner’s barber shop; that he talked once with Koerner, the proprietor of the shop-, because he had been employed by Mr. Turnbull, from whom they bought the place, and he was interested in it; later he recollected saying to him that he wanted to sell and had a ⁶⁹⁰ certain price put on the place and some commission for the man that sold it; that he had been trying to sell the property for three years.

He was asked to tell about the conversation with Mr. Bayne, and replied: “Why, I had no specific conversation with Mr. Bayne. As I recall, I was out of the chair and paying my check and stood behind Koerneris chair and was talking to him, if anybody, much more than anybody in there, and there were several barbers and the bootblack, and he might just as well come in for a commission as any other man there, as I understand it; I had no specific conversation with that man in view of constituting him my agent.” He said that when Bayne came to his house he did not recognize him, as he was accustomed to see him in his barber’s coat. Bayne introduced himself to him and said, “I am the man that sent Mr. Clifford to- Steffey,” and my wife was there, and I said, “this is the man, it appears, that has sent Clifford, our possible purchaser, to the real estate people,” and I said to Mr. Bayne, “If that is true, then, as you say, I don’t see why Steffey won’t do the right thing by you in the way of commission, but it is a matter in which I had absolutely no interest.” He testified that Steffey and Company, real estate brokers, had the exclusive right at that time to sell, .and that he had paid them the commission-($1,325), but he had not paid it when Mi*. Bayne came to see him, and the sale was not then consummated; that he first met Mr. Clifford when Mr. Em-mart, representing Steffey and Company, brought him to the place, but never met or heard of him before; that Mr. Bayne never told him to see him; that when Mr. Emmart brought him there he showed him over the place, and there was aftei*wards quite a loxxg negotiation; that Mi’.

Emmart conducted the negotiations and Mr. Bayne had nothing whatever to do with them, and never sent him a bill for commissions before he brought the suit and never made any demand on him for commissions after the sale; that he had no idea of what ⁶⁹¹ Bayne did, other than what he said; that he knew nothing whatever about Mr. Earp, and never heard of Mr. Held; that he thought the contract with Steffey and Company was made the latter part of March; he thought of trying to sell it himself, hut did nothing and gave it back to Steffey and Company; that Steffey had it during the three-year period, as well as other brokers, and he then made an exclusive contract with Mr. Steffey. James L. Clifford, the purchaser, testified that he required telephone service in his business and at his home; that he knew Mr. Earp personally and had spoken to him to know if he knew of any place, and he said he did not; that he had been in touch with probably nine or ten real estate brokers, but he always told them he wanted a place of eight or ten acres, was on their lists; that he took the matter up> with the telephone company because he would not buy a place unless he was sure he would obtain good service; that he met Mr. Held at the bridge at Buxton and Mr. Earp had told him he would meet him there; that he had probably a half dozen places in that neighborhood to see, and Mr. Held was to go along and determine whether any of those places would furnish a good telephone service, and he looked at three or four of them. He was asked, “Were they agents to see about the telephone service, or as brokers?” and replied: “absolutely, I didn’t know Mr. Held except in the capacity of the telephone company. That is all I knew of him.

Mr. Earp told me he would meet me there and give me