Opinion
(Filed 8 April, 1908.)
1. Principal and Agent — Agency to Sell — Purchaser — Agent's Compensation — All Over a Fixed Price — Contract, Express.
An agreement between principal and agent that the latter is empowered to sell for the former a piece of property and to have all he could obtain for it over a certain price is a valid express contract as to the agent's compensation, and he is entitled to recover upon the contract In obtaining a purchaser "ready, able, and willing" to pay for the property.
2. Principal and Agent — Agency to Sell — No Time Limit — Revocation, Notice of.
When a principal places his property with an agent to be sold, without specifying a definite time therefor, notice of revocation is necessary to terminate the agency, especially when there is an agreement to effect.
3. Principal and Agent — Agency to Sell — Purchaser Procured — "Ready, Able, and Willing" — Evidence Sufficient.
An agent to sell property of his principal can corroborate his evidence that his vendee was "ready, able, and willing" to comply with the sale by showing that his vendee soon after bought the property, from the one to whom the principal had sold, at the price agreed upon with the agent.
(305) APPEAL from Webb, J., at January Term, 1908, of DURHAM.
W. W. Mason and Giles Sykes for plaintiff.
R. O. Everett and Manning Foushee for defendant.
Plaintiff appealed. The facts are stated in the Opinion.
The uncontradicted testimony of the plaintiff is in December, 1906, the defendant placed in his hands a piece of property to sell at $1,400, with a stipulation that in lieu of commission plaintiff was to have all he could get over $1,400, and that it was further between them that the defendant would not dispose of the property without giving the plaintiff notice; that in February the plaintiff sold the property for $1,500 to a party "ready, able and willing" to pay for it, but, on reporting the sale to defendant, found that the latter had sold the property, 29 January, 1907, to another party for $1,350, without giving the plaintiff any notice.
Upon the above evidence the court charged that the defendant had a right to sell the land and that "the plaintiff would not be entitled to recover $100 — that is, the difference between $1,400 and $1,500 — that he would be entitled to recover the quantum meruit, i. e., such compensation as the jury may find he is entitled to recover for the services he rendered the defendant in attempting to sell the land between the date of the contract and the time (29 January) when the defendant sold it."
This was erroneous. There being a valid express contract, there is no ground for recovery on a quantum meruit. The plaintiff was entitled to recover the stipulated compensation (here $100), if (306) the jury believed the evidence. Reed v. Reed, 82 Pa. St., 420; Phelan v. Gardner, 43 Cal. 306; Doty v. Miller, 43 Barb., 529; Bailey v. Chapman, 41 Mo., 537; Monroe v. Snow, 131 Ill. 136, and numerous cases collected in notes to Beckenridge v. Claridge, 43 L.R.A., 593.
Notice of revocation must be given by the principal to the agent. Mechem Agency, sec. 226. Besides, in this case an express agreement that notice should be given is shown.
If there had been no agreement as to the compensation the plaintiff could have recovered on a quantum meruit for the value of his services in making sale at the price he did, and not merely the value of services in trying to make sale up to 29 January, when the defendant, unknown to plaintiff, actually made sale — the rule which his Honor laid down. That the vendee of the plaintiff was "ready, able, and willing" to comply is fully shown by the fact that the plaintiff, on defendant's failure to comply, bought the land for his vendee from defendant's vendee for $1,500.
Error.