Dlnkclsplel. J
This suit is based on the following agreementj- * I hereby irrevockably appoint R. Mo. Williams, his heirs or successors, my agent, and authorize my agent to sell my property known as No. 3837-39 Berlin Street, with all the ground and Improvements appertaining or belonging thereto, including the gas and electrio fixtures and plumbing fixtures now attached to the building, said ground measuring 40 ft. front by a depth of 130 ft., for the price and sum of 87.000.00. or anyother amount which may hereafter be agreed upon. I give my agent sole oontroll of same for 180 days from date, and further agree not to interfere in the sale of the property during the term of this contract.
I also bind myBelf to refer all applicants for the purchase of said property to my agent. At the expiration of said 180 days, X will, within five days, notify my agent in writing, whether or not I desire this contract discontinued, and my failure to do so, shall operate as a renewal of this oontract for a term of an additional 180 days.
When this property is sold, I agree and bind myself to pay my agent, a commission of three per cent, no matter by whom the property has been sold. In the event of not sale being effected during the existance of this contract,no charges will be made for commission, provided, however, that if a sale is made after the expiration of this oontraot, to a party with whom negotiations had been opened by R. He. Williams, that the commission named herein above will be paid to R. Mo. Williams. It is understood and agreed, that my agent's labor ceases when a deposit is put up, and the sZ commission is exned, and will be paid by me whether the title to said property is accepted or rejected by purchaser. My agent is authorized to accept a deposit of ten per cent of the purchase price, and in case of suit to recover any [240]*240part of the commission due, twenty-fi^'would be added A for attorneys fees." Signed- Frank Reith, Jr."
It appears from pit the petition of plaintiff, substantially, that the foregoing oontraot had been entirely annulled by defendant who had disposed of this property Irrespective and independant of plaintiff, and that plaintiff's contract of employment expressly provides, that if said property was sold during the existance of the contract, that a brokers charge of three per cent of the selling price should be paid to plaintiff; he avers that during the existence of said contract the property was sold by defendant, and that therefore the commission of three per cent , together with attorneys fees, the property having been sold for |6.390.00, and the attorneys fees of twenty-five per cent, making the amount claimed $191.00. for which he prays for judgment.
Defendant in his answer, admits Article 1, denies Article 3, to Article 3, he admits, that if the property was sold during the existance of the contract a brokerage charge of three per cent should have been paid plaintiff, but denies specially that the property was sold during the existence of the contract, and further denies that any compensation is due plaintiff.
In answer to Article 5, defendant avers, that on April, 5th. 1917, defendant notified plaintiff, in writing, that the contract had expired, and that he did not need plaintiff's services any longer, which terminated the contract, and annexed hereto, his answer, and makes part thereof, a 'Idressed to plaintiff by defendant. Defendant $*#9® for judgment dismissing the suit
The letter referred to reads as follows
" April, 5th. 1917.
Mr. R. Me. Williams. -810 Common St.
City;-
[241]*241"Dear Sir;-
" This is to notify you that I have taken down " your signs at 3837-39 Berlin Street, as my " contract with you has expired and wont need " your services any longer, so far I have had n no applicants. As I am living in the place, " will attend to it myself, thanking you for " your attention, I remain,
Yours Respectfully,
Frank Reith. "
The testimony of plaintiff endevoring to prove an attempt to sell the property in question goese on to state, that he listed, advertised and reported in the usual method of selling property.
Q- Bhat about carding it?
A- I am not sure whether I had it carded or not, but I Judge it must have been. Tes, I see the cards shows a sign waB ordered.
Q- It is set forth in the answer, Mr. Me. Williams, that Mr. Reith, on April 5th. 1917, gave you a notice in writing, withdrawing this property from your hands. Did you ever receive such notice?
A- Did'nt receive it.
Carbon copy of letter shown witness.
Q- In answer to that letter did Mr. Reith call upon you?
A- He did.
That letter íb dated August 33nd, 1^17, and I ask leave to read it into this record instead of copying it. And the letter was read.
Q- That was signed by you?
A- Yes.
Q- Did Mr. Reith call upon you?
Q- What did he say in reference to that?
[242]*242A- He expressed suprise at receiving a bill, he said he had overlooked the fact that 1 had agency for the property.
Q- Did he, at that time, claim or say anything to you of having revoked the agency? -A- He did not.
Q- What eff^ort, if any, did he make to settle the hill?
A- Make no effort.
On cross examination, this witness, being asked in what manner he offered the property, whether he had advertised, whether he had carded it, substantially testifiedj-
* I generally advertise in the Times-Picayune, generally in fact, always in fact. "
Q~ Do you keep records in your office, Mr. Me. Williams, of advertisements of property? -A- I do not.
Q- Do you remember submitting this property to anybody?
A- Ho, Sir!). I have no distinct recollection of submitting it to anybody.
That closed plaintiffs case.
In behalf of defendant, he himself, swears that the carbon copy of the letter offered in this case, and filed in evidence, was written by him in the original and addressed to plaintiff) mailed to plaintiff by a Miss Carrie Osborn, a young lady working for him at his place of business. He did not mail it himself but the lady in question did.
Q- Did you tell plaintiff about this letter? -A- Tes.
Q- But plaintiff denied that he received the letter?
A- He did'nt say anything about it.
Miss Osborn, worked for defendant on April, 5th. 1917, she was^4kedj
Q- Did you mail the original of this letter to Mr. Mo. Williams?- at the time? -A- Yes, Sir,
Q- To whom did you deliverMjjha^t^etter? —A- To the mail man. Q- You had worked for Mr. fcsMih prior to this? -A- Yes.
[243]*243Mr. Mo. Williams, recalled under oroes examination and examined "by Counsel for defendant, testified;-
Q- Mr. Me. Williams,was your correct address 810 Common Street? -A- Yes.
<J- On April 5th. 1917? -A- Yes.
Q- Who opened the mail as it is received?
A- I always open my mail.
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Dlnkclsplel. J
This suit is based on the following agreementj- * I hereby irrevockably appoint R. Mo. Williams, his heirs or successors, my agent, and authorize my agent to sell my property known as No. 3837-39 Berlin Street, with all the ground and Improvements appertaining or belonging thereto, including the gas and electrio fixtures and plumbing fixtures now attached to the building, said ground measuring 40 ft. front by a depth of 130 ft., for the price and sum of 87.000.00. or anyother amount which may hereafter be agreed upon. I give my agent sole oontroll of same for 180 days from date, and further agree not to interfere in the sale of the property during the term of this contract.
I also bind myBelf to refer all applicants for the purchase of said property to my agent. At the expiration of said 180 days, X will, within five days, notify my agent in writing, whether or not I desire this contract discontinued, and my failure to do so, shall operate as a renewal of this oontract for a term of an additional 180 days.
When this property is sold, I agree and bind myself to pay my agent, a commission of three per cent, no matter by whom the property has been sold. In the event of not sale being effected during the existance of this contract,no charges will be made for commission, provided, however, that if a sale is made after the expiration of this oontraot, to a party with whom negotiations had been opened by R. He. Williams, that the commission named herein above will be paid to R. Mo. Williams. It is understood and agreed, that my agent's labor ceases when a deposit is put up, and the sZ commission is exned, and will be paid by me whether the title to said property is accepted or rejected by purchaser. My agent is authorized to accept a deposit of ten per cent of the purchase price, and in case of suit to recover any [240]*240part of the commission due, twenty-fi^'would be added A for attorneys fees." Signed- Frank Reith, Jr."
It appears from pit the petition of plaintiff, substantially, that the foregoing oontraot had been entirely annulled by defendant who had disposed of this property Irrespective and independant of plaintiff, and that plaintiff's contract of employment expressly provides, that if said property was sold during the existance of the contract, that a brokers charge of three per cent of the selling price should be paid to plaintiff; he avers that during the existence of said contract the property was sold by defendant, and that therefore the commission of three per cent , together with attorneys fees, the property having been sold for |6.390.00, and the attorneys fees of twenty-five per cent, making the amount claimed $191.00. for which he prays for judgment.
Defendant in his answer, admits Article 1, denies Article 3, to Article 3, he admits, that if the property was sold during the existance of the contract a brokerage charge of three per cent should have been paid plaintiff, but denies specially that the property was sold during the existence of the contract, and further denies that any compensation is due plaintiff.
In answer to Article 5, defendant avers, that on April, 5th. 1917, defendant notified plaintiff, in writing, that the contract had expired, and that he did not need plaintiff's services any longer, which terminated the contract, and annexed hereto, his answer, and makes part thereof, a 'Idressed to plaintiff by defendant. Defendant $*#9® for judgment dismissing the suit
The letter referred to reads as follows
" April, 5th. 1917.
Mr. R. Me. Williams. -810 Common St.
City;-
[241]*241"Dear Sir;-
" This is to notify you that I have taken down " your signs at 3837-39 Berlin Street, as my " contract with you has expired and wont need " your services any longer, so far I have had n no applicants. As I am living in the place, " will attend to it myself, thanking you for " your attention, I remain,
Yours Respectfully,
Frank Reith. "
The testimony of plaintiff endevoring to prove an attempt to sell the property in question goese on to state, that he listed, advertised and reported in the usual method of selling property.
Q- Bhat about carding it?
A- I am not sure whether I had it carded or not, but I Judge it must have been. Tes, I see the cards shows a sign waB ordered.
Q- It is set forth in the answer, Mr. Me. Williams, that Mr. Reith, on April 5th. 1917, gave you a notice in writing, withdrawing this property from your hands. Did you ever receive such notice?
A- Did'nt receive it.
Carbon copy of letter shown witness.
Q- In answer to that letter did Mr. Reith call upon you?
A- He did.
That letter íb dated August 33nd, 1^17, and I ask leave to read it into this record instead of copying it. And the letter was read.
Q- That was signed by you?
A- Yes.
Q- Did Mr. Reith call upon you?
Q- What did he say in reference to that?
[242]*242A- He expressed suprise at receiving a bill, he said he had overlooked the fact that 1 had agency for the property.
Q- Did he, at that time, claim or say anything to you of having revoked the agency? -A- He did not.
Q- What eff^ort, if any, did he make to settle the hill?
A- Make no effort.
On cross examination, this witness, being asked in what manner he offered the property, whether he had advertised, whether he had carded it, substantially testifiedj-
* I generally advertise in the Times-Picayune, generally in fact, always in fact. "
Q~ Do you keep records in your office, Mr. Me. Williams, of advertisements of property? -A- I do not.
Q- Do you remember submitting this property to anybody?
A- Ho, Sir!). I have no distinct recollection of submitting it to anybody.
That closed plaintiffs case.
In behalf of defendant, he himself, swears that the carbon copy of the letter offered in this case, and filed in evidence, was written by him in the original and addressed to plaintiff) mailed to plaintiff by a Miss Carrie Osborn, a young lady working for him at his place of business. He did not mail it himself but the lady in question did.
Q- Did you tell plaintiff about this letter? -A- Tes.
Q- But plaintiff denied that he received the letter?
A- He did'nt say anything about it.
Miss Osborn, worked for defendant on April, 5th. 1917, she was^4kedj
Q- Did you mail the original of this letter to Mr. Mo. Williams?- at the time? -A- Yes, Sir,
Q- To whom did you deliverMjjha^t^etter? —A- To the mail man. Q- You had worked for Mr. fcsMih prior to this? -A- Yes.
[243]*243Mr. Mo. Williams, recalled under oroes examination and examined "by Counsel for defendant, testified;-
Q- Mr. Me. Williams,was your correct address 810 Common Street? -A- Yes.
<J- On April 5th. 1917? -A- Yes.
Q- Who opened the mail as it is received?
A- I always open my mail.
Q- Ho one else opens the mail? -A- No.
Q- Did you receive any suoh letter from Mr. Reith?
AO Ho.
This is not a novel question. It has frequently been passed upon hy this Court and the Supreme Court of Louisiana. Counsel for plaint!» relies mainly upon the case of Freeman vs. Dlbol^f. Ill 'Court Appeal. 199, in that case the oontract read as follows;-
"I hereby appoint David Freeman my agent, and authorize him to sell my property for the price. I agree^ not to interfere in the sale of the property during the term of this contract. I also agree to refer all applicants for the purohase of the property to my agent. When this property is sold I agree to pay him, my agent, a commission of two per cent".
There wasjan^ active violation of Freeman's rights as decided in tkis-jes» case in the interference and sale by Dfboli^ without any legal right.
Following this we find in 13 Court of Appeal. 385. Kostmeyer vs. Gandry, where the court decides in a contract of the character of the one inquestion, where without cause defendant interferes with plaintiff's agency and without notification, judgment will be in favor of plaintiff, as the contract was for oalue and not a nudjrum pactum."
And, in Ho. 7518, Harvey vs, Hirsch, not yet reported, this Court, through his Honor, Judge Claiborne, quoting [244]*244with approval the opinion of the lower Court, " that a/ plaintiff spent a great deal of time in endeAvoring to interest prospective purchasers, and while the said oontract was in full force and effect, never having received any notice that defendant desired same discontinued, Hirsoh sold the property to Karl Adler for |3.500.00., and refused to pay plaintiff the three per cent stipulated in said contract as above detailed". The Court goes on further;- "Plaintiff, as a witness, testified, that he advertised the property several times and submitted it to prospective purchasers, and was «HisveriBg advertising the property, at the time it was sa sold by Hirsch". For these and sundry reasons this cause was decided in favor of plaintiff.
The latest expression of opinion of this Court is the case of Harvey vs, Garcia. No. 7797, not yet reported; the syllabus citing Arts.3038 & 3030. R. C. C. and Taylor et. al. vs. Martin, 149 La. 143., in that case as in this case, an attempt was made to hold defendant liable for brokerage and attorneys fees and denial made of receipt of letter revoking power to sell. i'The only difference between that case and this, was that in thiB case it is claimed that not having sent the revocation within five days after the first 180 days expired that forever ended the defendants right to revoke. The author ities are abundant and to the oontrav effect.
It is evidence and it has been proven to our satisfact-A ion, that the letter quoted, carbon copy in the record, written by defendant and addressed to plaintiff, at his place of business on Common Street, one of the principle thoroughfares in the City of New Orleans, and handed to the mail carrier by an employee of defendant, must, in our opinion notwithstanding the denial of plaintiff, have been received by him. It is impossible at this late date [245]*245to believe otherwise. Every precaution was taken by defen-ripl/frilL itd&Ufcv dant in mailing this letter, given to the posteas», and when received, it was an absolute and final notice that plaintiff had no fmthe^^qn^rol over this property; that his mandate of sale eseaeed.
For the reasons herein assigned, it is ordered, adjudged and decreed, that the judgment of the lower Court be and 4 is hereby affirmed with costs of both CourtSagainst plaint-tiff.
(Judgment Affirmed)