Opinion
No. 282.
June 26, 1945. Rehearing Denied July 9, 1945.
Appeal from the Municipal Court for the District of Columbia, Civil Division.
William B. O'Connell, of Washington, D.C., with whom Russell F. Barrett, of Washington, D.C., was on the brief, for appellants.
Mark P. Friedlander, of Washington, D.C., for appellee.
Before RICHARDSON, Chief Judge, and CAYTON and HOOD, Associate Judges.
This was a suit for a real estate commission. Trial was by judge and plaintiff was awarded judgment. Defendant appeals.
The only witness for plaintiff was a Mr. Carpenter, a licensed salesman employed by him. His testimony tended to prove the following facts: That defendant gave him a thirty-day non-exclusive written authority to sell his property at a price of $14,950, with a commission of 5%; that the witness then placed "blind ads" in a newspaper, not revealing the address of the property. The thirty-day period having expired and Carpenter not having found a purchaser, defendant at his request continued the agency, telling him, "Go ahead, the property is still for sale." Plaintiff's office then inserted another "blind ad," on March 2, 1944 and during that day received a phone call from a Charles McCoy inquiring about the address of the property and the asking price; that Carpenter told McCoy that he did not have an exclusive agency and offered to show the house to him that night. Witness then called defendant Lindquist and secured permission for McCoy to see the house that night. Carpenter then called McCoy back and having given him the address told him to go ahead and look at it. A day or so later he made another call to McCoy who said the house was too large and too expensive. About a month later (on April 5) he again called McCoy who this time refused to give him any information. It was about the same time that Carpenter learned from defendant himself that the property had been sold to McCoy. Carpenter admitted that he had not tendered a contract to or received one from McCoy and that he had never personally seen him until the time of the trial.
He also admitted that before calling on defendant Lindquist he "might" have read an advertisement about the property and that defendant "might" have told him that the house was also in the hands of other brokers. He also testified that he had told McCoy that the price was $14,950 with $4,000 cash; that he had secured an offer of $13,950 from another party which defendant had refused, saying that he would not take less than the asking price indicated. There was in evidence a sales contract signed by defendants as sellers, by McCoy as purchaser and by Russell F. Barrett as agent. This contract originally showed the price of the property at $14,105, all cash, but this price was deleted and in its place there was written "$13,900, less $500 commission." The settlement sheet of the title company showed the sale price to be $13,900, with a 5% commission to Russell F. Barrett.
A title company official testified that the revised price of $13,900 was agreed upon at the time of settlement and that $100 of the commission money had gone toward the purchase price.
Defendant Lindquist admitted that he had authorized the plaintiff to offer the property for sale but said he had also given the same authority to several other brokers, including Barrett. Denying that he had ever extended the thirty-day agency, defendant said that after that period had expired neither the plaintiff nor any of his employees had communicated with him until after the house had been sold to McCoy; that the first time he saw McCoy was when Russell Barrett brought him to the house; that plaintiff had never mentioned McCoy to him and had never brought anyone to him ready to meet his price, although he did once tell defendant that he had an offer of $13,500; that he had reduced the price when McCoy offered all cash; that he and McCoy and Barrett had talked for about five hours before the deal was closed and that the contract was signed the night Barrett brought McCoy to him; that he had known Barrett for five or six years and that Barrett and McCoy lived next door to each other; that he knew nothing about the $14,105 price but that he understood his contract to mean that he was actually to receive $13,400 all cash.
Mr. McCoy, called by plaintiff as a witness in rebuttal, testified that he had signed the purchase contract the same day he saw the inside of the house; that he had talked once with Carpenter, but did not know the date of that talk.
In making his finding for plaintiff, the trial judge filed a memorandum setting out the facts as we have just given them and noting that there was a direct conflict between plaintiff's agent Carpenter and the defendant on two principal issues: (1) As to Carpenter's testimony that he had called defendant and told him of McCoy's interest in the property and had arranged for McCoy to visit the house, and (2) that after the expiration of the thirty-day agency defendant had authorized him to continue to offer the property for sale. The memorandum continued as follows:
"The account of the transactions given by plaintiff's witness, Carpenter, was very convincing, backed up as it was by entries made by him at the time in a memorandum book, and, furthermore, his account was substantiated at least in part by Mr. McCoy, who remembered that Carpenter had telephoned to him at one time. There were other circumstances supporting Mr. Carpenter's story, such as the fact that he continued to offer defendants' property after the expiration of the first thirty-day agreement. Accordingly, I find as facts that:
"1. The defendant authorized plaintiff's office to continue to offer his property for sale up to and including the date when the sale was made to Mr. McCoy;
"2. That plaintiff was the procuring cause of the sale from defendant to Mr. McCoy;
"3. That defendant's first knowledge that Mr. McCoy was interested in the property came to him through plaintiff's agent;
"4. That at the time defendant negotiated the sale to Mr. McCoy he knew that plaintiff's office had first told him of Mr. McCoy's interest in the property."
The trial judge further stated that he was convinced from the evidence that Carpenter, having received authority to sell, was telephoned to by McCoy, gave the address of the property to McCoy, and at the same time told defendant that McCoy was an interested prospect; that thereafter McCoy and Barrett got together and called upon Lindquist and concluded the sale, although both Lindquist and McCoy knew of the part that plaintiff's office had played in the transaction. In closing, the trial judge made mention of the fact that Mr. Barrett "who obviously could have thrown some light on the transaction, was not called upon to testify, although he signed the answer as one of counsel for defendants and was present in court during the trial of the case."
It will be seen at once that the case presents its doubtful aspects. But as we see it those doubts arise from the issues of fact and not from the law.
There can be no doubt that if this were the familiar case of one competing agent defeating another in open competition while the owner remained neutral the commission would belong to the agent who closed the deal, and the unsuccessful agent would receive nothing. Evans v. Shinn, 40 App.D.C. 557; Davidson v. Jones, Mun.App.D.C., 34 A.2d 261, and cases there cited. But the trial judge expressly found as a fact that the situation was otherwise. Nor, of course, if the agency had been at an end could the agent rightfully demand a commission; in such case he would have been a mere volunteer, acting without authority. But again the trial judge found as a fact that the situation was otherwise. If the agent Barrett had actually first discovered McCoy as a prospect and procured him as a purchaser, then it was Barrett and not Carpenter (or his office) who had earned the commission. So also if Carpenter had neglected to inform the owner that McCoy was his prospect or had not carefully arranged McCoy's first (and as it developed, his only) visit to the home, the owner might properly contend that it was Barrett and not Carpenter who had produced the purchaser. But on this point as on the others the trial judge expressly found on the facts that the owner first learned of McCoy as a prospect from Carpenter and knew that was the situation at the time he negotiated the sale.
On all of these points the trial judge made it very clear that the plaintiff's evidence was "very convincing" and was supported in part not only by his own records but by the purchaser and by other circumstances.
Finally we point out that the question of who was the procuring cause is usually one of fact and that upon the facts as he found them, the judge could not have ruled otherwise on the law. His judgment must stand, for we cannot re-weigh the evidence or override the findings; this is certainly not a case "where it clearly appears they are manifestly wrong." Nolan v. Werth, 79 U.S.App.D.C. 33, 142 F.2d 9, 10, and cases there cited.
Wilson v. Franklin, 282 Pa. 189, 127 A. 609; Warshawsky v. Traub, 156 Md. 597, 144 A. 833; Studt v. Leiweke, Mo. App., 100 S.W.2d 30.
Affirmed.