Walker v. Baldwin & Frick

Pearce:, J., delivered the opinion of the Court. Both the appellant and the appellees at the time that the controversy in this case arose, were, and the appellees still are, real estate brokers in Baltimore City, and the suit was brought by the appellant to recover from the appellees half the commissions received by them from the sale by them to Sylvan us Stokes of a lot at the Northeast corner of Baltimore and Hanover streets. The case was first tried in November 1905, and resulted in a verdict for the defendants under instructions from the Court ⁶²⁶ that the plaintiff could not recover, because at the time his alleged cause of action arose, he did not hold a real estate brokers license as required' by the charter of "Baltimore City. On appeal from that ruling the judgment was reversed and the case remanded fora trial on the merits. . 103 Md. 352 .

This trial was had in January,1907, before Judge Stockbridge without the intervention of a jury, and a verdict was again rendered for the defendants, this appeal being taken from rulings both upon the admissibility of evidence and upon the prayers offered. The testimony is voluminous, and there is much conflict upon one of the material questions in the case as to the alleged agreement between the parties, but the law applicable to the controverted facts, we think is settled by the decisions in this State. We shall request the Reporter to set out the prayers in full, and it will be sufficient for their proper consideration, to state the respective contentions of the parties, together with some of the salient features of the testimony, without attempting to go into all the details. The appellant’s contention is two fold: 1st.

That there was an express agreement between himself and the appellees to divide with him the commissions received by the appellees in case Stokes bought through them the Northeast corner of Baltimore and Hanover streets, which he did in fact ultimately purchase through the appellees; and 2nd. that even if there was no such express agreement, that he nevertheless laid the foundation for the sale ultimately made to Stokes, was its procuring cause, arid was therefore entitled under the custom shown to prevail between real estate brokers working together for a sale, to a division of the commissions. • The appellees’ contention may also be said to be two fold; 1st. That the alleged agreement related exclusively and expressly to a specific piece of property known as the McClellans alley lot which they did not succeed in procuring for Stokes; and 2nd. That though Walker brought the appellees into communication with Stokes as a prospective purchaser of a hotel site in Baltimore, and although after the failure to sell ⁶²⁷ him the McClellans alley property Walker endeavored with the assistance of George G. Riordan to locate Stokes on the Northeast corner of Hanover street yet the appellees during that time were endeavoring to locate Hamburger & Sons on that corner for a commercial business, and had themselves taken an option upon the Northeast portion of that corner in order to enable them to control the situation whatever might be the ultimate result of the negotiations; but that the effort of Walker to locate Stokes failed entirely because of Stokes inability to finance the purchase of the whole property, and that though Stokes also desired to purchase the strip on which appellees had taken their option, believing it would be a safe transaction for him, even if he failed to secure the rest of the property, yet when he learned that the appellees had closed their option on the northeast strip, he abandonded altogether the purchase of that site, and so informed Riordan and Walker, who in turn informed the appellees; and that subsequently a Mr. Orem introduced to the appellees a Mr. Forsythe who stated that he wished to purchase that corner for a hotel he intended to erect, and that after several interviews the appellees sold him the strip they had purchased at an advance ot $500. entering at the same time into an agreement that the rest of this northeast corner should be bought by him through the. appellees as brokers, all of which was carried out in good faith; and that the appellees believed that Forsythe was the real principal in the transaction, and did not know or suspect that Stokes had any connection with the transaction until their agreement with Forsythe was closed, and until he directed that their contract for the slip purchased by them should be assigned to Stokes; and that Stokes was only enabled to purchase the property, at the time and in the manner described by reason of Forsythe’s ability, in conjunction with a Philadelphia builder Mr. Gilpin, to furnish the additional money necessary for carrying out the plan, and which Walker & Riordan had been unable to furnish. We have examined the record carefully, and find ample evidence legally admissible and not excepted to, tending to ⁶²⁸ prove these respective contentions of the parties as to the facts.

It is not disputed that Walker introduced'Stokes to the appellees as a customer for a hotel site in Baltimore shortly after the great fire of February 7th, 1904, and that he ultimately purchased through the appellees the property on the northeast corner of Baltimore and Hanover streets on which the Hotel Caswell was erected for him. Walker testifies that upon being authorized by Stokes to look for a hotel site he examined a number, one of, which bore a sign showing it was for sale by the appellees; that he called on Frick and told him he had a New York hotel man he thought they could land if he could get a good location, and said to him, “Now Mr. Frick we are both real estate men, and if we make the sale I expect a division in the commission whatever you and I will get out of it,” and that Frick replied, “certainly Mr. Walker, that is thoroughly understood among real estate people that it should be so.” That Walker then described the lot he had in mind, which Frick said was between McClellan’s alley and Little Sharp street, and also said that it was in contemplation to extend Hanover street above Baltimore street, in which case there would be two new corners there. That Frick said part of the McClellan’s alley property was owned or controlled by the Safe Deposit Company, and that Frick and Walker then called on Mr. Marshall of the Safe Deposit Company, and Frick said to him, “Mr. Walker and I are working to secure a hotel property;” that they did not get any definite price on the Safe Deposit lot, but that Walker submitted to Stokes the McClellan’s alley property and also told him of the two new corners dependent upon the extension of Hanover street; that he and Frick worked on the McClellan’s alley property for some time and nearly accomplished a deal, when the Safe Deposit Company sold or built on their part of that property, and that site was then abandoned; that afterwards he had frequent interviews with Frick in which they discussed for this hotel site different lots on Baltimore street including the two contemplated new corners and the old Carrollton site, and that these discussions continued until the' latter part of August, ⁶²⁹ 1904, when Stokes telegraphed his friend, Samanni, to secure the extreme northeast portion of the northeast corner of Hanover street, at $20,000, when he and Samanni called on Frick and showed him the telegram, and Frick said “there is nothing in Stokes; besides I have an option on this property for a commercial business. Mr. White is with me and I do not . i want anything to do with Stokes, because there is no business in it; “that Walker then replied, “suppose the commercial end does not go through on that corner, do I stand the same with you as last spring?

Do I get half the commission?” That Frick said, “Yes, if Stokes buys that lot of course we stand together, but I think you are wasting your time, I have wasted enough of mine.” Walker admitted on cross-examination that when he and Frick first met Stokes at the St. James’ Hotel, the McClellan’s alley property was the only one considered, but he testified also that Frick’s agreement with him was, that if Stokes got any hotel site in Baltimore through Frick, he was to divide commissions with him, and that he did not disclose Stokes as his principal until Frick had made that agreement with him. Mr. Frick on the other hand testified that the only agreement with Walker for a division of commissions was in case they sold the McClellan’s alley property to Stokes or his associates and that there was no other specific property under consideration between himself and Walker and Stokes. He denied Walker’s version of the interview at which Stokes’ telegram authorizing the purchase of the northeast slip of the corner was shown him, and said that he told Walker, “You will have to count me out, I am working on that corner for Howard White for another matter, a commercial proposition;” that Walker replied, “Suppose that don’t go through, and I could get Stokes there, how do we stand on that?” he answered, “Mr. Walker, you will have to let me out. I do not think Mr. Stokes means business, and I am out of it.

Count me out.” He testified that he knew Hamburger & Sons for whom he was working to get the northeast corner, that he knew they meant business, and he preferred to keep clear of ⁶³⁰ Stokes in the matter; that he and White took an option from Mr. Willis on the northeast strip of the northeast corner because they wished to control the situation in any event; that they felt confident Hamburger would take it off their hands, and even if they did not that it was a safe investment for them, and that with these views they closed their option with Mr. Willis on that strip on September 20th, and took that part of the property, and that when they finally made the deal with Forsythe they had no knowledge or suspicion that he represented Stokes <pr that Stokes had. any interest in the transaction. Samanni substantially corroborated Walker as to Frick’s agreement to divide commissions, as did also Mr. Geo. J. Riordan, while Mr. White sustained Mr. Frick’s version, and distinctly denied that given by Mr. Riordan. Stokes testified that for some time the only property under his consideration was the McClellans alley property, and that after that fell through, Frick gave him a price on the northwest corner of Hanover St. which he considered, but finding that the northeast corner was a better shaped lot he preferred that; that when he sent the telegram of Sept. 20th to Samanni to purchase the strip of 19 feet, part of the northeast corner, his financial arrangements would not have enabled him to close for the whole property, but he was able and willing to take the 19 foot strip, in order to facilitate the whole transaction — believing that