Hayes v. Clark

111 A. 781, 95 Conn. 510

• Court: Supreme Court of Connecticut
• Decided: December 5, 1920
• Status: Published

Opinion

Curtis, J.

The defendant, the owner of certain real estate in New Haven, and the plaintiff, a real-estate broker, signed the agreement, Exhibit A, on April 18th, 1917. All the express undertakings in the written agree inent are made by the owner. The owner in the agreement gives the broker the exclusive right to sell the property for the term of one year.

The defendant claims that, under the facts, the terms of Exhibit A constitute merely an offer to contract, and that no acceptance of the offer has been established. The first clause of the agreement reads: “Harry J. Clark, of New Haven, Connecticut, hereinafter known as the ‘Owner’ and Hayes & Allen of New Haven, Connecticut, hereinafter known as the ‘Agent,’ agree together as follows:” The signature of the broker attached to Exhibit A, with the first clause thereof reading as above, establishes the fact that the broker intended thereby to accept the terms of the agreement.

The defendant urges that the express terms of the agreement include no promises on the part of the broker, and that the agreement therefore lacks mutuality or consideration, and is unenforceable. The defendant fails to appreciate that, under certain circumstances, written contracts bearing the signatures of both parties, which on their face and by their express terms appear to be obligatory on one party only, create a corresponding and correlative obligation on the other party by implication. This principle of law is stated as follows in Ruling Case Law (Vol. 6) p. 688, § 95: “Frequently it happens that contracts on théir face and by their express terms appear to be obligatory on one party only; but in such cases, if it is manifest that it was the intention of the parties, and the consideration upon which one party assumed an express obligation, that there should be a corresponding and correlative obligation on the other party, such corresponding and correlative obligation will be implied.” Minneapolis Mill Co. v. Goodnow, 4 L. R. A. 203 and note (40 Minn. 497, 42 N. W. 356); 1 Williston on Contracts, § 90; 1 Page on Contracts (2d Ed.) § 187. In the case of Taylor Co. v. Bannerman, 120 Wis. 189, 97 N. W. 918, a written contract in these words was signed by both parties: “We hereby appoint the W. G. Taylor Co. of . . . our agents for Wisconsin and Illinois, and agree to sell them the following described stone [list of kinds and prices]. It is further agreed that the W. G. Taylor Co. are our exclusive agents for Wisconsin and Illinois, and we will quote no prices to others without their consent. This agreement is understood to be in force for the full term of one year from February 1st, 1899.” The claim was made by the owners of the stone that the contract was void for want of mutuality, because the W. G. Taylor Company did not expressly bind itself to purchase any stone or do anything. The court held as to this claim as follows: ‘ * This position we deem untenable. The signature of the plaintiff’s name to that paper was obviously for the purpose of acceptance. The presumption is that the signing was for some purpose, and no other is apparent. If an acceptance, it bound the plaintiff to perform any acts on its part necessarily implied either from those things which the defendants were bound to do or from the situation created by the contract. [Citing cases.] The plaintiff therefore bound itself to be the defendants’ exclusive agent within the territory named, . . . and to perform the duties resulting from such agency. . . . These at least included good faith and due diligence in bringing the defendants’ stones to the notice of possible consumers for the purpose of sale to them.”

We will now consider the case at bar in the light of the law as outlined above. In the amendment to the complaint the broker alleges that he accepted the agency and entered upon its performance. This agreement falls within the class of written contracts signed by both parties, from which the obligation of one party (the broker) arises by implication from the terms of the agreement and the situation of the parties created thereby, because it is manifest that it was the intention of the parties and the consideration upon which the owner assumed the express obligations of the agreement, that the broker should assume the corresponding and correlative obligations of a broker with exclusive right to sell for a period of one year. When the owner and broker signed the agreement, Exhibit A, an executory contract was made. The promises of the owner were expressed in the agreement. The promises of the broker were implied from the terms of the agreement and the situation of the parties created by it. The implied promise of the broker was that he would become the owner’s broker with exclusive right to sell the property for one year, and perform the duties resulting from such an agency. These implied duties were that he would in good faith use reasonable efforts to procure a purchaser of the property. Reasonable efforts mean such efforts as are reasonable under the circumstances. Among the circumstances to be considered are the facts that the owner is to employ no other broker, and is to pay the broker employed a commission of two per cent if the owner accepts a purchaser from any source.

The court found in considerable detail the steps taken by the broker to procure a purchaser immediately after the execution of the agreement, and found that the broker “faithfully used all reasonable means and efforts to find a purchaser for the defendant’s property.” This finding accords with the subordinate facts and hence is conclusive. The broker, therefore, performed the promises implied from his entrance into the agreement, and is entitled to a commission of two per cent on the purchase price under the clause of the'agreement which reads as follows: “ Said agent shall receive two per cent of any offer accepted by the said owner during the life of the contract, whether the proposed purchaser is introduced to said owner by said agent or not.”

Furthermore, under the facts found, if we disregard the fact that the broker signed the paper, Exhibit A, and consider it merely as an offer to enter into an agreement, then, since immediately after the delivery of Exhibit A to the broker, signed by the owner, the broker with the owner’s knowledge faithfully used all reasonable means and efforts to find a purchaser for the property, this fact constitutes in law an acceptance of the offer and creates a mutual contract. Schoemann v. Whitt, 19 L. R. A. 599 note (136 Wis. 332, 117 N. W. 851); Goward v. Waters, 98 Mass. 596; Dresser v. Gilbert, 81 N. J. L. 358, 79 Atl. 1043; Lapham v. Flint, 86 Minn. 376, 90 N. W. 780; Murphy v. Sawyer & War-ford, 152 Ky. 645, 153 S. W. 991; Braniff v. Baier, 101 Kan. 117, 165 Pac. 816. The obligation resting upon the broker by such an acceptance is the same as that stated above as arising by implication from his signature upon the written agreement, Exhibit A. The facts found by the court, that the broker “faithfully used all reasonable means and efforts to find a purchaser for defendant’s property,” entitles the broker to recover after an acceptance of the offer by acts, equally as after an acceptance by signature.

In addition to his claim that the contract was unenforceable because lacking mutuality or consideration, the defendant claimed that the contract, if a valid one, was revoked. This claim is based on the facts that about two months after the execution of the agreement the defendant notified P. J. Weil, the agent of the plaintiff who executed the agreement for the plaintiff, to do nothing further for the present about the sale of the property until notified to go ahead, because he, the defendant, had heard that there was some question affecting defendant’s title to the premises; and that Weil thereupon ceased to make efforts to sell the property, and shortly thereafter left the plaintiff’s employ without notifying the plaintiff of what the defendant had told him. Another employee of the plaintiff continued to make efforts to sell the property up to the time of the sale. These facts fall far short of proving a revocation of the plaintiff’s agency.

The motion of the defendant, that the finding should be corrected so as to find in effect that the defendant revoked the agency, is denied. The evidence fully supports the finding.

The defendant further claimed, in effect, that it was not proven that the broker had in good faith used reasonable efforts to find a purchaser, because he did not list the property after thirty days with other members of the New Haven real-estate board under by-law thirteen of said board; and further that the broker’s efforts must be shown to have been extraordinary efforts to entitle him to recover. The by-law, and the possibility of its use, were in evidence before the court, and there is nothing in the record to lead us to correct the finding in this or other particulars as the defendant desires, or to hold that the by-law was not properly weighed by the court in finding that the broker “faithfully used all reasonable means and efforts to find a purchaser for the defendant’s property.” We have stated that the promise implied by the broker’s acceptance of the contract was that he would in good faith use reasonable efforts to procure a purchaser of the defendant’s, property. The promise thus implied is not that the broker would use extraordinary efforts. Extraordinary efforts, with its implication that there are recognized ordinary efforts on the part of brokers for comparison, is a too indefinite and impracticable standard of conduct for consideration.

There is no error.

In this opinion the other judges concurred.