Opinion
No. 34005.
February 19, 1940. Suggestion of Error Overruled March 18, 1940.
BROKERS.
Evidence that broker had a voluminous correspondence with property owner and with tenant to whom property was leased, but that lease was arranged and consummated through the activities of another, to which a commission was paid by owner, sustained denial of recovery by broker for services allegedly rendered in procuring the lease.
APPEAL from the chancery court of Pike county; HON. R.W. CUTRER, Chancellor.
Ogden O'Mara, of McComb, and Flowers, Brown Hester, of Jackson, for appellant.
The chancellor failed to give any consideration to the contract between the parties.
The facts found by the chancellor are not supported by the evidence.
Even if the chancellor's finding of facts is supported by the evidence, such finding does not justify a decree for appellee, when consideration is given to the undisputed facts not considered by the chancellor.
Even if the finding of facts is correct, the decree is contrary to the law of the case.
Where terms of sale are not specified and sale is made by principal, the broker has performed his duty and is entitled to the commission.
Roell et al. v. Offutt, 103 So. 239, 138 Miss. 599; Lavecchia v. Reed, 163 So. 681, 174 Miss. 9.
Where terms are specified the contract is to sell, but where terms are not specified the employment is merely to find a purchaser.
Tonkel v. Moore et al., 137 So. 189, 162 Miss. 83; Hadley v. Shaffer (Ala.), 59 So. 286.
Where one lists his property with a broker and the sale or lease is consummated with the broker's prospect he is entitled to his commission.
Sunflower Bank v. Pitts, 66 So. 810, 108 Miss. 380; Taylor v. Barbour, 44 So. 988, 90 Miss. 888; Ferguson v. Quick, 78 So. 618, 117 Miss. 692.
The law will not permit one broker who has been entrusted with a sale and is working with the customer to be deprived of his commission by another agent stepping in and selling the land to the customer of the first broker.
Brennan v. Roach, 47 Mo. App. 290, 297; Gresham v. Lee, 111 S.E. 404, 152 Ga. 829. James A. Wiltshire, of Magnolia, R.B. Reeves, of McComb, and Forrest B. Jackson, of Jackson, for appellees.
If Taylor complied with his contract he is entitled to his commission; if not, then the decision of the chancellor should stand.
Enochs v. Paxton, 87 Miss. 660, 40 So. 14.
The findings of the chancellor are supported by the evidence and his conclusions therefrom prevent recovery.
Jayne v. Drake (Miss.), 41 So. 372-3; Kolb v. Bennett Land Co., 74 Miss. 567, 21 So. 233; Walker v. Walker, 125 U.S. 342, 8 S.Ct. 929; Walker v. Denison, 86 Ill. 142; Stensgaard v. Smith, 43 Minn. 11.
The chancellor was justified in the findings made on the entire record.
Reynolds v. Alexander, 164 Mo. 860, 146 So. 305.
Under the law of the case which was fully considered by the chancellor the bill was properly dismissed.
Roell v. Offutt, 138 Miss. 599, 103 So. 239; Lavecchia v. Reed, 174 Miss. 9, 163 So. 681; Tonkel v. Moore, 162 Miss. 9, 137 So. 189; Handley v. Shaffer (Ala.), 59 So. 286; Sunflower Bank v. Pitts, 108 Miss. 380, 66 So. 810; Taylor v. C.C. Barbour Co., 90 Miss. 888, 44 So. 988; Ferguson v. Quick, 117 Miss. 692, 78 So. 618; Gresham v. Lee, 111 S.E. 404, 152 Ga. 829; Stanley v. Grimes, 158 Miss. 1, 128 So. 324; Hays v. Ryker, 151 Miss. 382, 118 So. 119; King Anderson v. Ritchie, 162 Miss. 36, 138 So. 581; Moore v. Rich, 124 Miss. 283, 86 So. 772.
Argued orally by J.N. Ogden, and Fred Bradshaw, for appellant, and by Forrest B. Jackson, for appellee.
C.K. Taylor, the appellant, brought suit in the Chancery Court against the Kramer Service, Inc., and Xavier A. Kramer, for commissions claimed by Taylor for services rendered in leasing certain property owned by Kramer Service, Inc., in the City of McComb, to J.C. Penney Co., Inc. Among other things, C.K. Taylor was engaged in the real estate and rentals business, and was active in trying to secure a department store for McComb City, in which city Kramer Services, Inc., owned one or more buildings. In the arrangement between Kramer Service, Inc., and Taylor, it was provided that Taylor was to have a commission of five per cent of the amount of the sale price if the property were sold, or the same amount of a price paid for a lease if the property were leased through his activities or instrumentalities, but it was provided in the agreement that Kramer Service, Inc., could also be active and handle the property for itself, and certain other persons were excepted from the agreement between the said Kramer Service and Taylor.
One of the business buildings owned by the Kramer Service, Inc., was leased for a term of years to J.C. Penney Co., Inc., but the lease was arranged and consummated through the activities of a Chicago firm, which procured a contract from Kramer Service, Inc., and to which concern a commission or compensation was paid by Kramer Service, Inc. Taylor had a voluminous correspondence with J.C. Penney and with Kramer, too voluminous to set forth in this record, but it appears from the record and the correspondence that the lease contract was procured through the activities of a firm in Chicago, Illinois.
The chancellor found on consideration of all the correspondence and testimony of both Taylor and Kramer that Taylor was not entitled to the commission and that the lease had not been procured through his activities. It will serve no useful purpose to set out the voluminous correspondence, even by summary, and it will suffice to say that the chancellor had sufficient facts upon which to base the decree which he rendered. There are so many cases involving commissions to real estate dealers with customers that further statements are unnecessary, the law being well settled and each case presenting usually facts different, at least in part, from any other case, and it would probably cause confusion rather than clarity to enter into a detailed statement of the facts in the present case. We think the chancellor's judgment must be affirmed.
Affirmed.