Opinion
No. 4271.
Argued April 7, 1954.
Decided May 4, 1954.
A real estate broker who procured a customer willing and able to buy upon terms proposed by the owner and was the efficient cause of the sale is entitled to a commission where he acted as her agent and expected a commission.
The fact that after the two parties were brought together by the broker the owner performed the transaction without further assistance did not preclude recovery of a commission by the broker.
The rule that an agent acting for both parties is not entitled to compensation from either party has no application to a real estate broker who acts as a middleman to bring the prospective purchaser and seller together to bargain themselves with the knowledge of the party desiring to sell.
Certain argument of plaintiffs' counsel in commenting on defendants' argument was invited and did not constitute reversible error.
It was within the province of the jury to award an amount less than that claimed by a real estate broker to be due him as commission on sale of real estate or an average of the prevailing rate for sale of like property.
ASSUMPSIT, to recover a real estate broker's commission of $700 for procuring the defendants Lapham as purchasers of certain real estate owned by the defendant. During the course of the trial, after the completion of the defendant Cole's testimony, the plaintiffs, hereinafter called plaintiff, took a voluntary nonsuit against the defendants Lapham, the purchasers. Trial by jury resulted in a verdict for the plaintiff for $600.
The evidence disclosed that the defendant had been unsuccessful in selling her property through other agents and that on April 18, 1950, she asked the plaintiff to sell it. The plaintiff examined the property the following day but did not want to list it without exclusive agency which the defendant was unwilling to grant. On April 20, the Laphams called on the plaintiff who telephoned the defendant and found the property was still available and made arrangements for the Laphams to see the property. The defendant reduced her price from $8,000 to $7,000 but no sale was then consummated. Five days later the defendant informed the plaintiff she would pay no commission. On May 22 the Laphams made deposit of $1,000 and on May 29, received a deed from the defendant indicating a price of $8,000. The actual amount paid by the purchasers was $7,000. The transactions that the defendant prepared for the sale were as follows: She gave the purchasers $2,000 who paid this sum plus $5,000 of their own money which with the deposit made a price of $8,000; the purchasers then gave the defendant a promissory note for $1,000 against the $2,000 which they had received from her, which note they subsequently paid. Other facts appear in the opinion.
The defendant excepted to the denial of her motion for a directed verdict, to the denial of requests for instructions and to the Court's instructions to the jury. Exception was also taken to the argument of plaintiff's counsel and to the ruling that there was no evidence on which it could be found that the plaintiff was anything but a mere middleman. These exceptions were reserved and transferred by Grimes, J.
Sullivan Wynot (Mr. Wynot orally), for the plaintiff.
William H. Sleeper and Wayne J. Mullavey (Mr. Sleeper orally), for the defendant.
The defendant and the purchasers were strangers to each other and the evidence justified a finding that the plaintiff was the effective cause which brought about the resulting sale. If the defendant employed the plaintiff this entitled the plaintiff to a commission (Russo v. Slawsby, 84 N.H. 89) since he had procured a customer willing and able to buy upon terms proposed by the owner. Philbrick v. Chase, 95 N.H. 82, 84. The question of whether the plaintiff was employed was submitted to the jury. The plaintiff was entitled to his commission even though he did not take an active part in the final negotiations. Williams v. Walker, 95 N.H. 231; Restatement, Agency, s. 448; Morrison v. Hall, 78 N.H. 48. The plaintiff was not a volunteer broker whose actions were unknown to the defendant. Mechem, Outlines of the Law of Agency (1952) s. 562. Although the defendant claimed that the plaintiff was not her agent, she knew before she sold the property that the plaintiff acted as though he were her agent and expected a commission if the property was sold to the Laphams. The intricate financial transactions in the sale to the Laphams was further evidence from which the jury could find that the defendant sought to avoid payment of the commission. If she thought she could "perform the rest of the transaction without further assistance or expense," the jury could find that she was not entitled to do so. Restatement, Agency, s. 454; 1 Corbin, Contracts (1950) s. 50. See Fischer v. Patterson, 97 N.H. 318.
It is urged that since the plaintiff was acting as agent for both parties, he is not entitled to a commission from either party. Reliance is placed on the following quotation from Wilson v. Atwood, 81 N.H. 61, 63: "Apparently, the plaintiff undertook to act as agent for both parties. If such is the fact, he cannot recover from the defendant, in the absence of proof that she knew of and assented to his acting in such dual capacity." This is sound law (Restatement, Agency, s. 391) but it does not apply to the facts of this case for several reasons. First the defendant knew of the plaintiff's relationship to the purchasers and it could be found she assented to it by her telephone conversation and her subsequent actions. Secondly, the rule is subject to "one notable exception" where the broker acts as middleman to bring two parties together and permits them to make their own bargain. Rupp v. Sampson, 16 Gray (Mass.) 398. Anno. 80 A.L.R. 1075, 1077. The rule is stated in Mechem, Outlines of the Law of Agency (1952) s. 503 as follows: "So where he is not relied upon to bargain for either party but is merely an introducer or middleman, whose function is merely to bring parties together who may then bargain for themselves — as is often the case with the real estate broker — it is frequently held that there is no legal objection to his serving in this double capacity. . . ." The Court properly ruled that there was no evidence that the plaintiff acted in any other capacity than that of middleman. Hence there was no occasion to instruct the jury on this issue. The instructions submitting the issues of whether the plaintiff was employed by the defendant, and if so, whether he was the efficient cause of the sale, adequately covered the law as applied to this case.
Counsel for the plaintiff in final argument to the jury stated that he was not ashamed and felt no reproach for taking a voluntary nonsuit against the Laphams and that he would do it again under the same circumstances. Previously the defendant in his argument commented on the nonsuit and made the following rhetorical statements, "Now, we don't know what happened here do we? . . . I wonder what sort of arrangement they had made before that." Prior to arguments defendant's counsel inquired of Lapham if "through some arrangement" his attorney had "got your case voluntarily nonsuited." Objection was made and counsel stated: "There was no arrangement whatsoever. We came into chambers and we felt on the basis of Mrs. Cole's testimony that a nonsuit was in order." The objection to the question was sustained and the Court told the jury to disregard it and to draw no "inference from it whatsoever." If the plaintiff's rebutting argument was error, it was invited error of which the defendant cannot now complain. State v. Small, 78 N.H. 525, 531; Hersey v. Hutchins, 70 N.H. 130; Cote v. Company, 86 N.H. 238, 242.
Objection to the verdict of $600 as a compromise verdict on the claimed amount of $700 is not fatal. The jury could award less than claimed or an average of the prevailing rate of commissions for sale of like property. Restatement, Agency, s. 443 (b); 4 Williston, Contracts (rev. ed.) s. 1030A; Williams v. Walker, 95 N.H. 231.
Judgment on the verdict.
All concurred.