Morris v. Bragg

156 S.E. 381, 155 Va. 912, 1931 Va. LEXIS 275

• Court: Supreme Court of Virginia
• Decided: January 15, 1931
• Status: Published

Opinions

Prentis, C. J.,

delivered the opinion of the court.

This litigation arises out of these circumstances: The senior Morris owned a large farm in Surry county, which attracted the attention of those interested in colonial history, because it is called the “John Rolfe house.” The witness, T. R. Goodwin, thus expresses his understanding of the facts: “It is called the John Rolfe house, but I don’t think John Rolfe ever saw it. It is also called the Thomas Rolfe house and I believe he saw it (%. e., the house), but never owned it. It is my understanding it was built by a gentleman by the name of Thomas Waring (Warren) who was an intimate friend of Thomas Rolfe, who was the son of John Rolfe and Pocahontas.” He says that its historical value is because of its association with John Rolfe, due to the fact that the land on which the house stands was left to Thomas Rolfe by his father, “and Thomas Waring (Warren) built this house on it without, I believe, getting a deed to the land, but Thomas Rolfe knew he was building the house, and he was an intimate friend of Thomas Waring (Warren).”

In “Old Surry,” A. W. Bohannan, published 1927 by Plummer Printing Company, Inc., Petersburg, Virginia, pages 18-20, it is stated that there is evidence in the records of Surry county indicating that the land once belonged to Powhatan, the father of Pocahontas, who married John Rolfe; and also that “this much, however, is settled beyond a doubt, the land here was a gift from the Indian king, Powhatan, and Thomas Rolfe once owned it.”

This proceeding by motion is based upon a written contract under seal, which authorized Bragg, who was a real estate agent, to procure a purchaser for the land, and provided for the payment of ten per cent commission to Bragg, in consideration of his efforts to find a purchaser. The pertinent provisions of the contract are quoted in the opinion of the trial judge, hereafter reproduced.

There are many errors assigned, and many cases cited in which compensation to real estate agents has been allowed or denied, but few of them are helpful in this case because its solution depends upon the precise terms of the specific, though unusual, contract between the parties.

Bragg, the plaintiff, is a colored real estate agent (and the owner, Morris, is also colored). Bragg deemed it advisable to secure and did secure the aid of a prominent real estate agency in Richmond (Pollard and Bagby, Inc.). A cut of the Rolfe house located on the property was made and published along with advertisements in a Richmond newspaper. These advertisements- directed attention to the value of the house as a colonial monument. It had attracted the attention of persons interested in such properties before this contract had been entered into, and Mrs. John B. Lightfoot, representing the association for the Preservation of Virginia Antiquities, had made an offer for it. After the contract had been entered into, the real estate agents, in the name of Mrs. Lightfoot, approached the owners again, acting under the provisions of the contract, but the price offered was unsatisfactory to the owners. Then, in May, 1928, Mr. T. R. Goodwin, the son of Dr. W. A. R. Goodwin, of Williamsburg, visited the owners on the place. Dr. Goodwin’s interest was based upon the same considerations which had also enlisted the interest of Mrs. Lightfoot. He is the agent of the corporation known as Colonial Williamsburg, Incorporated, organized for the purpose of restoring and preserving colonial buildings in and about Williamsburg, Virginia, made possible only by the princely munificence of that philanthropist of broad vision, that patriot with the generous heart and open hand, John D. Rockefeller, Jr.

T. R. Goodwin, as the result of a long conference with Bolling M. Morris, Sr., finally seemed a written option on twenty acres of the property upon which the house stands for $9,000, which he testifies was made in the name of Mrs. Lightfoot, as president of the A. P. V. A. This because the owners knew something about Mrs. Lightfoot and did not know Goodwin. As the result of this option, Dr. Goodwin seemed a deed for this portion of the estate, paying therefor $9,000. That this was with the acquiescence of Mrs. Lightfoot is apparent from the testimony of Goodwin.

Bragg sued for and recovered $900, ten per cent upon the gross purchase price, and to this judgment a writ of error has been allowed.

As has been indicated, we do not think it necessary to review the Virginia cases referring to contracts which have no similarity to the contract which, is here to be construed. A few cases have been cited from other jurisdictions which tend to support the trial judge’s conclusion, as expressed in his instructions to the jury as well as in his opinion.

Among these cases is Owens v. Wehrle, 14 Pa. Super. Ct. 536. There Wehrle, by written contract, placed his property in the hands of the agent for the period of twelve months, followed by this provision: “And do empower the said George T. Owens to act as my agent in the sale of the same; and in ease a sale is effected through the above agent, or any other person, or within the time specified, I agree to pay the said George T. Owens commission of five per cent on the full amount of sale, and to pay the same out of the first money received by me.” The court held that the construction of the written agreement was for the court, and denied the contention of the defendant that the meaning of the contract should be held to be that the agent was to be paid provided he effected a sale; that failing to show this it was not sufficient to show that it was effected by some other person. As to this the court said: “We have before us a written agreement, which is not ambiguous in its terms, which is not susceptible of more than one meaning, namely, that should the defendant’s property be sold during the time limited, by the plaintiff or by anyone else, the plaintiff should receive a certain sum of money, measured by a per centum of the price received. If it be said that the contract, thus read, bears hardly on the defendant, the reply is that the courts do not sit to relieve suitors from the results of improvident agreements, nor the consequences of bad bargains. It may be that the defendant made a foolish agreement. It may be also that the plaintiff, in the mind of the defendant, at least, was worth as agent the provision made for him. At all events, the provision was made, and while it would seem, in the absence of proof that the plaintiff made efforts to sell the property, that consideration was wanting, yet is the suggestion met by the presence of a seal to the agreement importing consideration. Geiselbrecht v. Geiselbrecht, 8 Pa. Super. Ct. 183.

“This, as has been seen, is not the mere appointment of an agent. It is not merely the entry of a property with a real estate broker for sale on commission. It is a formal agreement under seal, whose terms we are asked to enforce. We are of the opinion that the court below could not have done otherwise than direct a verdict for the plaintiff upon the case as'it was presented before him.”

In Kimmell v. Shelly, 130 Cal. 555, 62 Pac. 1067, the contract provided: “For and in consideration of the services to be performed by Messrs. Hooker and Lent, I hereby employ them as my sole and exclusive agents to sell for me that certain real property * * *. This employment and authority shall continue for the full period of thirty days from the date hereof and thereafter until withdrawn by me in writing; and I agree to pay to said Hooker and Lent, in the event of the sale of said real property by them or by anyone else, including myself, while this contract is in force, two thousand two hundred and fifty dollars as and for their compensation.” In that case the owner, after the expiration of thirty days but before any withdrawal, sold the property to a purchaser who was not found by the real estate brokers. They were allowed to recover the amount specified in the contract just quoted. In holding that the contract there was not the ordinary broker’s contract, but specifically quite different therefrom, and made by persons competent to contract, the court held that there was a sufficient consideration for the contract supplied by the efforts of the brokers, and concluded thus: “The question here presented is purely one of construction of this particular contract, and it is immaterial what may be the judicial construction given the ordinary broker’s contract. The brokers here did not agree to find a purchaser, but being employed to find one, they were agents of defendant to that end, and were legally bound to use their time and labor for the benefit of their principal; and it is the use of this time and labor which forms the consideration to support her promise to pay them the compensation mentioned in the agreement.”

Another case involving a contract somewhat like that here involved, in which a recovery was allowed, is Goward v. Waters, 98 Mass. 596. There the owner fixed the price of his property, and agreed to pay the agents any' amount which they might secure for the property in excess of that price, and then promised that in case he, the owner, should sell it at the fixed price, or at a greater or less price, then that he would pay the agents three per cent of the amount paid him for the property. The defense there was that there was no consideration for the unusual promise to pay even though the owner sold the property himself, but the court overruled this contention and permitted the recovery, holding that the contract contemplated services to be rendered and that the promise was a valid one, made in view of such future services and expenses incurred by the agents.

While none of these contracts is precisely like this one, these cases state the principle applicable thereto. Here, the pertinent language in the contract is that in consideration of the efforts of the brokers to find a purchaser, it was agreed to pay commissions in case sale was made to any persons to whom the agents presented the property, and that they should likewise have the stated commission should a sale or exchange of the property be made either by the agent or by any other person or persons. While we do not know whether the sale was actually made to Dr. Goodwin as a consequence of the advertisement, or through Mrs. Lightfoot, an intermediary, and as a consequence of its presentation by the brokers to her, there is nevertheless good reason for supposing that either or both may have influenced; the sale, and there is nothing upon which to base a conclusion that the brokers were not thus directly or indirectly the procuring cause of the ultimate sale; and even though neither of these suggestions be true, the result would be the same under this contract.

If what we have said is insufficient, we reproduce the opinion of the trial judge, the Honorable Frank T. Sutton, Jr., as stating reasons amply sufficient for aflh’ming the judgment:

“This is a proceeding by notice of motion for a judgment for $900.00, with interest from May 5, 1928, alleged to be due as commissions under a contract for services concerning sale of real estate in Surry county.

“Due to the fact that the writing evidencing the terms of the agreement contained unusual terms, the usual principles governing the recovery of commissions by agents for the sale of property are not applicable, and the case must be controlled by the terms the parties agreed upon.

“By writing under their hands and seal, dated the 4th day of May, 1926, the defendants, among other things, authorized the plaintiff to sell certain property in Surry county. The particular clause of this writing which governs the issue raised in this case reads as follows:

“ ‘In consideration of your efforts to find a purchaser for the above described property, it is hereby agreed, should a contract of sale or exchange acceptable to the undersigned be made by you to any person, firm or corporation within or during the life of this contract to whom you have presented said property; or should a sale or exchange of said property be made in any other manner, through or by you or any other person or persons, then a commission of ten per cent of said sale becomes payable to you on demand.’

“By. another of the terms of the writing the contract was to remain in force for three years from the 4th day of May, 1926.

“Few, if any, of the material facts in this case are controverted. Such as were controverted raised questions for the jury. Their verdict resolved these facts (so far as necessary to determine the vital issue) in favor of the plaintiff. The execution of the written contract of May 4, 1926, is not denied. It is under seal. This imports a consideration for the promise of the defendants on its face and the writing is not merely a unilateral promise.

“It is not necessary, however, under the facts of this case, to rely upon the above rule. The writing of May 4, 1926, may be treated as a mere offering open for acceptance during the time limit therein specified unless revoked before acceptance.

“In Williston on Contracts, at page 12, the rule touching such a situation is stated as follows: ‘An offer of reward, an offer of a price for goods, or for services, becomes a contract when what is requested is given or done, although no obligation to give or do anything ever existed.’

“Again, the same author says, at page 30: ‘An offer is to be known from other conditional promises only because the performance of the conditions in an offer is requested as exchange or return for the promise in the offer, thereby giving the offeree a power by compliance with the request to turn the promise in the offer into a contract or sale.’ (Italics supplied.)

“The evidence shows that the promisee did make efforts to find a purchaser for the property. The doing of such acts was an acceptance of the offer and forms in law a valid consideration for the promise to pay ten per cent commissions, etc. From the time said efforts to make sale were performed the writing of May 4, 1926, was no longer a nudum pactum. Unless the offer had been revoked before such acceptance by the efforts of the promisee to make sale it became a binding contract. There is no dispute in the evidence about the fact that it had not at any time been expressly revoked by the defendants, nor had it expired by the time limit prescribed in the writing.

“It is urged by the defendants that the sale was made by the owner direct, and that the owner was not within the class contemplated by the words, ‘or should a sale or exchange of said property be made in any other manner, through or by you or any other person or persons, then a commission óf ten per cent of said sale becomes payable to you on demand.’

“T. It. Goodwin, a witness introduced by the defendants, said that he was the son of W. A. R. Goodwin, the latter representing Colonial Williamsburg, Incorporated; that he went from Williamsburg, Va., to Surry county and spent about six hours negotiating with the defendants for a sale of a portion of the property. He said that he was paid no commission by the defendants and was not employed by them. This witness said he represented his father (W. A. R. Goodwin) and the interest that his father represented.

“Thus it appears that the sale was made through the efforts of a third party. The vendor and vendee were brought together by the efforts of a third party. Though this third party represented the purchaser, that is not an unknown occurrence in real estate circles.

“According to T. R. Goodwin, it was his persistence, extending over a period of over six hours of negotiation, that resulted in his obtaining an option for which he paid $25.00, which option was in the name of Mrs. John B. Lightfoot, of Richmond, Virginia.

.“Another phase of this case is worthy of consideration. There was testimony that the plaintiff had, on a previous occasion, carried the defendants an offer from Mrs. John B. Lightfoot, of Richmond, to purchase this property. The witness, Goodwin, said that the defendants were unwilling to give an option to anyone but Mrs. Lightfoot, and further said it was through Mrs. Lightfoot’s acquiescence (express, implied, or taken for granted, it does not clearly appear) that the conveyance was finally made to W. A. R. Goodwin. W. A. R. Goodwin, as evidence shows, was acting for Colonial Williamsburg, Incorporated.

“For convenience, the following extract from the writing of May 4, 1926, is again quoted: ‘Should a contract of sale or exchange acceptable to the undersigned be made by you to any person, firm or corporation within or during the life of this contract to whom you have presented the property; * * *.’ (Italics supplied.)

“The act of the plaintiff in obtaining from Mrs. Lightfoot a written offer to purchase said property made her one to whom the plaintiff had ‘presented the property.’

“Nine instructions requested by the defendants were refused. Some of them contained incorrect statements of the law of the case, and the others, while stating correct propositions of law, were wholly inapplicable under the evidence of this case. They were, therefore, useless, and would have been confusing to the jury.

“For the reasons stated above, this case is easily distinguished from the case of Perrow v. Rixey, 119 Va. 192, 89 S. E. 101. In that case the court very tersely said: ‘The paper upon its face is unilateral not under seal * *.’ In the case at bar the paper was under seal. Continuing, the court said in that case: ‘And does not express that it was made upon a valuable consideration.’ In the case at bar, the defendants, in writing, made a promise, under seal, in consideration of the plaintiff making efforts to sell. Taking this as a mere offer on the part of the defendants, and applying well settled principles, it became binding when the plaintiff made the designated efforts before a revocation of the offer was made.

“Belmont v. McAllister, 116 Va. 285, 81 S. E. 81, was relied on by the defendants. In this case there was a lack of mutuality which prevented the formation of a binding agreement. But in the case at bar, when the plaintiff supplied the 'efforts’ which the defendants expressly made a consideration for their promise to pay commissions, the legal requirement of mutuality was present.

''The case at bar is rather controlled by the principles so clearly stated in A. C. Realty Co. v. Townsend, 124 Va. 490, 98 S. E. 684, where Perrow v. Rixey, supra, is distinguished and explained. At the bottom of page 507 of 124 Va., 98 S. E. 684, the court, quoting from Mechem on Agency, says: 'But as has already been seen, there may easily be cases in which the principal has so invited the broker to enter upon an undertaking requiring time for its full completion, that the actual commencement of the performance with the intention of completing it would be such an acceptance as would prevent the principal’s withdrawal without liability.’

"This expression covers the case at bar. The writing of May 4, 1926, definitely promises the plaintiff a commission of ten per cent for the plaintiff’s efforts to find a purchaser. The only condition was that a sale should be made by someone (it mattered not who) within the time limit set by the writing. This invited the plaintiff to enter upon an undertaking to find a purchaser. Such an undertaking required time, but the plaintiff actually commenced the work by bringing to the defendants an offer from Mrs. Lightfoot. This act of the plaintiff, if bona fide, was an acceptance. The jury were told by instruction that the efforts must be bona fide.

“The court is of the opinion that the motion to set aside the verdict should be overruled and judgment entered in accordance with the verdict of the jury.”

Affirmed.