Durant v. Lubs

140 S.E. 249, 142 S.C. 33, 1927 S.C. LEXIS 180

• Court: Supreme Court of South Carolina
• Decided: November 9, 1927
• Docket: 12312
• Status: Published

Opinion

The opinion of the Court was delivered by

Mr. Chief Justice Watts.

This is a suit at law for $8,000.00 commissions alleged to be due by defendant Dubs, as trustee, et al, on sale of property of Folly Roadway Company. The plaintiffs set forth a written contract or letter, and alleged that as agents for defendants they found a purchaser, to wit, Citizens’ & Southern Company, who bought under its terms. The defendants admit the letter and deny agency at time of sale. They allege that plaintiffs did not notify them, prior to the option given, the name of the purchaser, or that they had found same. They also allege estoppel.

The case ivas tried before a jury on the 27th and 28th of April, 1926, and resulted in a verdict for defendants. It is ■admitted that defendants executed to Citizens’ & Southern Company an option to purchase the property for $80,000.00, dated August 28, 1925; that the actual sale at said price was consummated by defendants with Citizens’ & Southern Company November 27, 1925; and that plaintiffs did not, prior to the execution of the option by Dubs to Citizens’ & Southern Company, dated 28th day of August, 1925, notify defendants that they had interested said particular company in said sale.

The main question on appeal in this case is whether or not the plaintiffs forfeited their right to claim a commission by their failure to give such notice. The presiding Judge charged that it was the duty of plaintiffs to have so done, and, if they did not disclose the name of their customer to defendants, they could not recover. From the portions of the charge of the presiding Judge embodying this proposition of law, plaintiffs base their appeal to this Court from the judgment on said verdict.

Exceptions 1, 2, and 3 must be sustained; his Honor’s charge was highly prejudicial to the defendant, on a point that was vital to the plaintiffs, and practically lost their case before the jury. Dubs did not ask them who the proposed purchaser was, as he had a right to do; in the absence of such inquiry, it is not necessary to disclose the name of purchaser. When Dubs gave the option to Rivers, in August, 1925, the name of the purchaser was disclosed to him; a purchaser was found who complied. Dubs was not hurt by the plaintiffs’ failure to disclose the name of the proposed purchaser, who wanted to comply, because he got $5,000.00 more for the property than he agreed to sell the same for. Inasmuch as there must be a new trial, the other exceptions are not considered.

Messrs. Justices Cothran, Beease, Stabler, and Carter concur.