Fink v. Williamson

158 P.2d 159, 62 Ariz. 379, 1945 Ariz. LEXIS 196

• Court: Arizona Supreme Court
• Decided: April 23, 1945
• Docket: Civil No. 4620.
• Status: Published

Opinions

STANFORD, C. J.

This is an appeal from the superior court. No findings of fact were made, but before judgment the court rendered an opinion setting forth the views of the court on different phases of the case.

We will refer to the parties as plaintiff and defendant as designated in the trial court.

Plaintiff was a duly licensed real estate broker in Tucson, Arizona, and defendant was the owner of the property involved. Plaintiff, the broker, showed the property of defendant to a Mr. and Mrs. Samuel E. Hostetter on March 10, 1942. The defendant was temporarily in Los Angeles, California. After showing the property to the Hostetters, plaintiff sent, the following telegram to defendant:

“Mar. 10/42

“Mrs. Albert Fink — % Mrs. F. A. Price

“% Gfaylor — Wilshire Blvd.

“Los Angeles, Calif.

“Have shown Mr. Hostetter prospective buyer your 10% acre and residence Oracle Road property. Please answer return wire Western Union collect authorizing me to sell, giving lowest cash price including regular real estate board commission. Please state furnishings that go with property.

“Stanley Williamson — Broker”

That same evening, March 10th, the defendant wired the plaintiff as follows:

“March 10, 1942

“Stanley Williamson, Broker

“Tucson, Ariz.

“I authorize Mr. Williamson, Broker, the right to sell my ten and half acre estate in Palosverdes for Thirty Two Thousand Dollars for cash No furnishings included at this figure however would consider selling many things reasonable. Property has clear title.

“Mrs. Albert Pink.”

When plaintiff received an answer to his telegram from defendant he telephoned Mr. Hostetter that he had received a wire from her and that she wanted $35,000 for the property furnished.

After plaintiff had shown the Hostetters the property during the day of March 10th, Mr. Hostetter went immediately to the office of the Arizona Trust Company, in Tucson, and started negotiations there with Mr. B. A. Schendel, a realtor salesman, for the purchase of the property. The original figure submitted to' Schendel was the samé as the one submitted to Williamson. Mr. Schendel talked that evening with defendant by telephone, but defendant claims that she did not know that Hostetter was Schendel’s customer, and the defendant after negotiations and reduction in price closed the deal with Schendel for the property to be purchased by his customer. Defendant returned to Tucson March 19th, and signed a preliminary agreement on March 21st in the office of the Arizona Trust Company.

Williamson continued negotiating with the Hostetters, and under his testimony it is shown that he saw them several times during the week he first showed them the property and gave them information they wanted. We take the following from his testimony:

“Q. Did you see them again after that? A. I saw them the next day, Friday.

“Q. And did you give them any further information at that time? A. I talked to them again about the property at the hotel. They said that they definitely dropped the matter of buying a piece of property in Tucson, weren’t interested in the Fink property; that ‘we are going back to Kansas, and packing up and getting ready to go; if we want any more information that we will contact you.’ ”

On March 2áth, after plaintiff had heard that defendant had sold her property to the Hostetters, he wrote her a letter and demanded his commission for the sale.

The trial court entered its judgment in favor of the plaintiff and against the defendant in the sum of $1300 and costs.

The sale of the property was by R. A. Schendel and commission paid to him.

The question for determination here is, was the plaintiff entitled to a commission? To entitle him to a commission he would have to be the efficient, proximate and procuring cause. Evidently the court so found, and the evidence discloses, that plaintiff was the immediate and efficient cause of the sale of the property to the purchaser. This is shown by the testimony of Mr. Hostetter.

“Q. You did not know where the Fink property was? A. No, sir.

“Q. You had never seen it until Mr. Williamson had shown it to you? A. I had passed it a number of times.

“Q. Did you know the place you had passed was the Fink place? A. No, not by name.

“Q. Did you know where to go to locate the Fink place? A. I don’t believe I could have found the place without directions.

“Q. Mr. Schendel had never shown you the place before that? A. No, sir.

“Q. You had been out with Mr. Schendel a number of times. A. That is correct.

“Q. And he had not shown yon the Fink place? A. No.”

We think the trial court’s ruling under the evidence, that plaintiff was the efficient or procuring cause of the sale of the property, is justified by the expressions of this court. In Garver v. Thoman, 15 Ariz. 38, 135 Pac. 724, 727, Justice Ross expressly stated:

“ ... if it is found that commissions should be paid, judgment should be for the one who was the immediate and efficient cause of the sale. (Italics ours.) ”

In the opinion of the court in Miller Cattle Co. v. Chambers, 36 Ariz. 282, 285 Pac. 277, 279, are many observations that are pertinent to the inquiry here.

“ . . . The very purpose of a broker’s agency is to locate and interest prospective purchasers of his principal’s property. If the agency is not exclusive, the owner may sell his property to any one not fownd by the broker. (Italics ours.)”

The case of Hafner v. Herron, 165 Ill. 242, 46 N. E. 211, is referred to in the decision with the following comment:

“ . . . the broker not only found the purchaser, but introduced him to the principal before the sale was consummated. ...”

Other decisions are also referred to in this opinion which indicate that the broker who finds and introduces the purchaser is the immediate and efficient cause of the sale.

The decision in Fornara v. Wolpe, 26 Ariz. 383, 226 Pac. 203, seems to us to be determinative of the question here. In that case the agent, as in the case at bar, brought the property involved to the notice of the lessee and introduced him to the owner. The owner later closed the deal directly with the lessee. The brokers were allowed their commission. The court said, 26 Ariz. at page 392, 226 Pac. at page 206:

“ . . . While the pleading and proof are that appellee was given certain terms upon which the property would be leased, yet, if he brought it to the notice of the person who afterwards purchased it, the fact that the owners themselves consummated the deal and voluntarily took a less sum than that given appellee would not deprive the latter of his right to the commission. (Citing cases.) In Plant v. Thompson, 42 Kan. 664, 22 Pac. 726, 16 Am. St. Rep. 512, the following syllabus appears:

“ ‘An agent employed to sell real estate, who first brings it to the notice of the person who ultimately becomes the purchaser, is entitled to his commissions on the sale, although the latter is effected by the owner of the property, nor can the owner evade his liability to pay the agent his commissions by selling for a sum less than the price given the agent, when the reduction is made of the owner’s own accord.’ ”

In their briefs defendant places considerable reliance on 12 C. J. S., Brokers, p. 207, § 91. The rule applicable to this case, however, is set forth in Section 92, p. 213, as follows:

“Where several brokers are employed to negotiate or effect the same transaction, the broker who first succeeds and is the procuring cause of the transaction is entitled to the full commission, to the exclusion of the other brokers. A broker may be the procuring cause of a transaction, so as to be entitled to compensation, even though the transaction is closed or consummated by the principal through the medium, or with the assistance, of another broker, . . . .”

The case of Cunliff v. Hausman, 97 Mo. App. 467, 71 S. W. 368, has a fact situation very similar to the cause under consideration. There a real estate dealer put in communication with the owner of a lot a prospective purchaser. The agent was authorized to sell at a certain price. The purchaser postponed the deal, went to another agent of the owner and received a purchase price from him at a slightly reduced price. It was held that the first agent was entitled to a commission for the sale. The effect of the decision is that the first agent was the procuring cause of the sale. In the case at bar the plaintiff and not the agent who consummated the deal, was the procuring cause.

The owner of property, listing it for sale with different brokers, cannot reduce the selling price to one and not the other provided the brokers are showing the property to the same customer. The seller must remain neutral to rival brokers. This statement is supported by the case of Hovey v. Aaron, 133 Mo. App. 573, 113 S. W. 718, 721, wherein it is stated:

“ ... If defendant, while plaintiff’s authority to sell stood unrevoked, chose to sell the property, either in person or through another agent, to a customer procured by the efforts of plaintiffs for a less price than that which plaintiffs were authorized to offer, that was his privilege, but he will not be permitted to reap the fruits of plaintiffs’ labor and then deny them their just reward. ...”

This point is also set out in the case of McGuire v. Sinnett, 158 Or. 390, 76 Pac. (2d) 472, 476, from which we quote:

“In the case before us the trial court also found that the plaintiff was the procuring cause of the sale of the property to Bohmann. There is, as hereinbefore pointed out, little conflict in the evidence. Taking the testimony in the light most favorable to the plaintiff, we are of the opinion that there is sufficient evidence in the record to support this finding. In this connec tion, we find in 4 R. C. L. 320 the following statement: ‘Where a prospective purchaser has been introduced to the owner by one broker and the negotiations are pending and have not fallen through, the owner can not, with knowledge of the facts, complete the purchase with another agent, and avoid his liability for the commission due to the first broker. Thus the law will not permit one broker who has been intrusted with the sale of land, and is working with a customer whom he had found, to be deprived of his commission by another agent stepping in and selling to the customer for a price less than the first broker is empowered to receive. But if a broker who has procured a purchaser reports his offer to his principal without identifying the person from whom it comes, he can not recover commissions in case of a subsequent sale through another broker at the same price to the same purchaser, unless it appears that the principal knew these facts or that notice was given him by the broker before the completion of the contract and payment of commissions to the second broker.’ ”

It will be seen from the foregoing authorities that where an owner employs different brokers he must not only be neutral as between the brokers, but if a purchaser is introduced to him by one broker, and the negotiations through that broker have not fallen through, the owner may not, with the knowledge of the facts, sell to such purchaser through another agent to the exclusion of the first agent. If the owner completes the deal through another agent under these circumstances, the owner is liable to the first agent. Before this deal was finally completed by the defendant, it seems obvious from the testimony, that she had complete knowledge of the fact that the buyer was the one who had been first produced by the plaintiff. In any event before she paid the commission to Schendel, she was fully advised that plaintiff had procured the purchaser.

The record shows that on March 21, 1942, the defendant signed an instrument agreeing to sell the prop erty to Mr. Hostetter. At this time she became aware that Hostetter was the man who had been produced by the plaintiff. She must have been under the belief at that time that the plaintiff was entitled to a commission if she sold directly to Mr. Hostetter. The record discloses that the defendant gave a deed to the property involved to Pima Canyon Properties Company, a corporation, dated March 24, 1942, although not acknowledged until the 25th. This deed was recorded in the county recorder’s office on the last named date. On March 24th deed was executed by Pima Canyon Properties Company to Samuel E. Hostetter and Velma E. Hostetter, husband and wife. This sale, however, was not recorded until March 30, 1942. These proceedings would indicate lack of good faith required by the authorities we have referred to. There was no occasion for the defendant to give her deed to the property to another except the purchaser. The bill of sale to furnishings and other things was dated March 24th, the same date as the deeding of the property to Pima Canyon Properties Company, and the bill of sale was made direct to the Hostetters.

This evidently was the reason for the statement by the trial court in its written opinion, given prior to the judgment, and from which opinion we quote:

“ . . . Suffice to say that she did sign a deed to the Pima Canyon Properties with some idea of keeping the true facts from Wiliamson and the world.”

The facts in this case must govern us in our opinion, and must be considered in order that justice may be done, and regardless of other eases that differ with our opinion we must say that the facts could not be similar to those stated herein. In the case of Armour & Co. v. Wantock reported in 323 U. S. 126, 65 Sup. Ct. 165, 168, the following language is used:

“ ... It is timely again to remind counsel that words of our opinion are to be read in the light of the facts of the case under discussion. ...”

We find there is sufficient evidence to support the judgment of the trial court.

Judgment is affirmed.

MORGAN, J., concurs.