Opinion
No. 3711.
Decided April 6, 1948.
It is not essential that a real estate broker obtain a written binding agreement between the buyer and seller to entitle itself to a commission on the sale of real estate. The broker's duty consists merely of being the efficient cause of procuring a customer willing and able to buy upon the terms proposed by the owner. The requirement that the customer have the ability to buy is met if he commands the necessary funds to close the deal within the time required. The fact that the seller of real estate, prior to signing a memorandum for the sale of her property, had no knowledge that the real estate broker with whom she listed the property had in fact procured the purchaser does not affect the broker's right to a commission on such sale, in the absence of prejudice to the seller. Nor does the fact that the purchaser was procured by a subagent affect the principal agent's right to collect the entire commission on the sale from the seller where the only authority delegated to the subagent concerned ministerial duties connected with the negotiations. Abandonment of efforts by a real estate broker to sell property listed with it by the seller does not disentitle it to a commission on a sale made between the seller and a purchaser procured by the broker as the result of efforts already made by it prior to the abandonment.
ASSUMPSIT, to recover a commission of one thousand dollars for selling the defendant's real estate pursuant to an oral agreement. In the week of June 15, 1946, the defendant agreed with the plaintiff that he might sell her farm and cabins near Pemigewasset Lake in the town of New Hampton for the price of $13,000 and that his commission would be $1,000 for procuring a customer. The talk was in the presence of Mr. Philbrick's son. It was agreed that a Mrs. Beane might work with the plaintiff, who did not drive a car, in getting a buyer and that she might share the commission. Mrs. Beane took two different customers to see the property but they did not buy, and she kept the plaintiff informed of her efforts to sell the property.
During the first week of July, 1946, Mrs. Beane contacted Arthur Clairmont, a real estate agent, and told him she was trying to sell the Chase property. About the middle of July Mr. Clairmont listed the Laconia residence of the Savards and learned that they were looking for cabin property. He informed Mrs. Beane and asked permission to show the Chase real estate. He was given this privilege after the plaintiff had agreed that Mr. Clairmont might join them and share the commission. July 23 or 24 the latter spoke to the Savards about the Chase cabin colony and made an appointment for the following afternoon to show it to them. They heard of it afterwards from another source and visited it the same day without Mr. Clairmont, when they obtained from the defendant the second refusal. Parties from New York having the first refusal decided not to purchase and the Savards notified Mrs. Chase that they would take the property. August 12, 1946, they paid $200 and received a receipt in writing and later paid $3,000 towards the purchase price. When the parties were ready to transfer title by deed, an attachment by the plaintiff in the present action was discovered and for this reason only the deed did not pass. The Savards took possession of the property. Other facts appear in the opinion.
Trial by jury resulting in a verdict for the plaintiff. The defendant excepted to the denial of her motion for a directed verdict and to the denial of her motion to set aside the verdict as against the law, the evidence and the weight of the evidence. Exceptions were taken to portions of the charge and to the failure of the Court to charge as requested.
All questions of law raised by said exceptions were reserved and transferred by Wheeler, J.
Frederick K. Upton, Robert W. Upton and Thomas J. McIntyre (Mr. Frederick K. Upton orally), for the plaintiff.
Normandin Normandin (Mr. Fortunat A. Normandin orally), for the defendant.
The Court correctly charged that the legal duty of the plaintiff consisted in being the efficient cause of procuring "a customer willing and able to buy upon the terms proposed by the owner." "`His undertaking was to procure a customer able and willing to buy.' Wilson v. Atwood, 81 N.H. 61, 65." Russo v. Slawsby, 84 N.H. 89, 91. See also, Toohey v. Davis, 85 N.H. 80. In Russo v. Slawsby, supra, 90, it was stated that the requirement of readiness was sufficiently covered by those of ability and willingness and need not be separately mentioned. If an agent is the effective cause of a specific result, he is entitled to the agreed compensation for such accomplishment.
The defendant excepted to the instruction that she and Wilfred Savard entered into a binding agreement of sale and purchase on August 12, 1946, on the ground that the Savards did not sign any agreement but merely went into possession and made certain payments on account. Without discussing whether or not the buyers were bound to take the property, the error, if any, was harmless. It was not part of the undertaking of the plaintiff that he see that a legal contract was made between buyer and seller, but merely to procure a customer able and willing to purchase. "It is our conclusion that the agency agreement merely authorized Toohey to secure a purchaser who was willing and able to buy (Russo v. Slawsby, supra) and did not empower him to bind the defendant by a sale agreement." Toohey v. Davis, supra, 85. Furthermore, the defendant is not prejudiced by the lack of a written agreement signed by the Savards. She concedes that they are in possession and have paid $3,200 on account of the price of $13,000 and that the only reason why the deal has not been completed is the fact of the attachment in the present suit. If it should appear before the consummation of the transaction that the Savards have not the requisite willingness and financial ability to go through with it, evidence of this may be brought to the attention of the Superior Court for such action as justice may require. At the trial there was abundant evidence of both ability and willingness.
One of the requested instructions of the defendant was that since on August 29, 1946, the date of the commencement of the action, the bank had not then approved of the loan to the Savards, they were not able to make the purchase. This does not state the law. Ability to buy means simply the power to effect that at the time of payment there shall be available to the buyer the necessary funds. Where the agreement does not fix the time for payment, a reasonable time is allowed. "The purchaser must be able to buy; and the word "able" means financially able; this does not mean, however, that such purchaser must have all the money in his immediate possession or to his credit at a bank, but only that he must be able to command the necessary funds to close the deal within the time required." Laack v. Dimmick, 95 Cal.App. 456, 470. See also, Webert v. Roberts, 211 Mich. 692.
The evidence is in dispute concerning whether the defendant prior to signing the memorandum for the sale knew that the plaintiff had procured the buyer. Unless Mrs. Chase was prejudiced in some way by the ignorance she claims and such ignorance was due to no fault of her own, then the plaintiff's right to a commission is not affected by her lack of knowledge. It is sufficient if a buyer is procured by the plaintiff in accordance with the terms of the agency agreement. "Subject to certain exceptions and limitations in some jurisdictions . . ., it is generally held or recognized, in an overwhelming majority of the cases, that if a real estate broker is in fact the procuring or efficient cause of the purchase of his principal's property and would otherwise be entitled to a commission, he will not be deprived thereof by the fact that the owner did not, at the time of the sale, have knowledge of the instrumentality of the broker in procuring the customer, even though the broker's agency was not exclusive." 142 A.L.R. 277.
The defendant sought to bar recovery on the part of the plaintiff on the ground of an improper delegation of authority to Mr. Clairmont or at least to limit it to one-third of the commission. The plaintiff is entitled to all of the commission or none. Neither Mrs. Beane nor Mr. Clairmont had any agreement with Mrs. Chase. Their employment was with the plaintiff and they look only to him for payment in accordance with the agreed terms. The right of Mrs. Philbrick to use any legitimate source that would aid him in securing the name of the prospective customer for the defendant's property cannot be disputed. He may seek his information where he will. The issue raised is whether he could delegate to Mr. Clairmont the duty of telling the Savards of the defendant's property, describing it and making arrangements to show it to them. This involved the delegation of no discretionary powers such as, to determine the terms of the sale, and has been held to be proper. "As between principal and broker, it is generally considered immaterial that the purchaser of the real estate was secured through the efforts of a subagent, rather than by the personal efforts of the broker himself. Since the subagent cannot claim compensation from the owner, the fact that the broker agreed to divide the commissions with such subagent in no wise affects the broker's right to claim the whole compensation from the principal. Accordingly, where the agent for the sale of land has not attempted to devest himself of his functions or his responsibilities to his principal, he may recover commission against the latter for bringing about a sale of the land, even though he has employed a subagent for the performance of mere ministerial duties connected with the negotiations." 43 L.R.A. (N.S.) 801. In McKinnon v. Vollmer, 75 Wis. 82, it was held that the showing of land was a mere executive or ministerial act that was binding on the owner although performed by a subagent. See also, Ryer v. Turkel, 75 N.J.L. 677, 684, 685.
It is argued that the plaintiff abandoned his agency because of the statement of the defendant to the Savards, which was reported by them to Mr. Clairmont, that the property was in process of being sold to a New York party and that the defendant was selling it her, self. Mr. Clairmont testified that he then forgot the case. But this was not evidence of abandonment that would cause forfeiture of a commission, if the efforts already made resulted in producing a customer. This is what happened according to the jury. "Nor does the simple fact that the plaintiff did not take an active part in the final negotiations prove that he was not employed by the defendant, or that what he did was not the efficient cause of the sale." Morrison v. Hall, 78 N.H. 48, 49. There is no evidence of abandonment before the plaintiff did his work and earned his commission.
Other requests deal with the application of legal principles to portions of the evidence. It is within the discretion of the Trial Court whether or not to instruct that certain conduct would not amount to effective means of a sale and that the plaintiff was not the effective means if other named individuals were in fact such. If the law is correctly stated in a positive manner, the negative form is ordinarily not required. The Trial Judge may use his own judgment. "The extent to which rules of law shall be given specific application to the claims of the parties and the facts disclosed by the evidence in a given case must be left to the sound discretion of the trial court." Colby v. Lee, 83 N.H. 303, 307.
Evidence that the plaintiff through Mr. Clairmont was the first to inform the buyers of the defendant's property, that the same day, July 23 or 24, they inspected it and on August 12 made a deposit was sufficient to warrant the jury in finding that the plaintiff with the help of Mrs. Beane and Mr. Clairmont was the effective means of the sale being made. The evidence was not conclusive in favor of the defendant nor was the verdict for the plaintiff conclusively against the weight of the evidence. Wisutskie v. Malouin, 88 N.H. 242, 246.
Judgment for the plaintiff.
All concurred.