Pinkerton v. Hudson

113 S.W. 35, 87 Ark. 506, 1908 Ark. LEXIS 98

• Court: Supreme Court of Arkansas
• Decided: October 12, 1908
• Status: Published

Opinion

Wood, J.,

(after stating the facts). Upon the undisputed facts, appellant was entitled to his commission. While appellee shows that the understanding was that appellant was not to have his commission until the deal was cloáed and the purchase money was paid, and that the commission was to be paid out of the proceeds of the sale, yet it appears that appellant had furnished the purchaser, who entered into a contract with the appellee for the purchase of his land. Appellee, by entering into the contract with the purchaser furnished by appellant, accepted such purchaser as satisfactory. It is not pretended by appellee that the contract was unenforcible.

The law is well settled that “where a real estate broker contracts to produce a purchased who shall actually buy, he has performed 'his contract by the production of one financially able, and with whom the owner actually makes an enforcible contract of sale. The failure to carry out that contract, even if the default be that of the purchaser, does not deprive the broker of his right to commissions.”' Lunney v. Healey, 44 L R. A. 593. In note to the above case it is said: “The business of a real estate broker or agent, generally, is only to find a purchaser, and the settled rule as stated by the courts is that, in the absence of an express contract between the broker and his principal, the implication generally is that the broker becomes entitled to the usual commissions whenever he brings to his principal a party who is able and willing to take the property and who enters into a valid contract upon the terms then named by the principal, although the particulars may be arranged and the matter negotiated and completed between the. principal and the purchaser directly.” (Citing numerous authorities.) There was nothing in the contract of appellee with appellant, taking appellee’s statement of the contract as correct, that takes it out of the purview of the general doctrine above announced.

In the absence of a contract to the effect that appellant was to see that the purchase price was paid by the purchaser before any commission should be due him or before he could receive any commission, the duty of collecting the purchase money for the sale of the land would not devolve upon him. That was the duty of the seller, the principal, and not the broker. Therefore there was no consideration for the promise on the part of appellant to pay half the costs of the chancery suit, conceding that he made it. Such promise was voluntary on his part. But, if not, it was wholly collateral to the matter in controversy. Such a promise, unfulfilled, would not warrant appellee in refusing to.enforce the contract for the sale of his lands and in failing to pay appellant the commission he had earned when appellee entered into that contract with a purchaser whom appellant had furnished, and who was financially able to pay. The sale was. closed, so far as appellant was concerned, when an enforcible contract of that kind was executed.

The fact that appellant was postponed in his right to receive the commission until the purchase money was paid could not relieve appellee of the duty of collecting the money and paying appellant his commission out of it, when collected. And when appellee, by dismissing his suit in chancery to enforce the contract, virtually refused to collect the purchase money, fie immediately became liable to appellant for his commission.

The case cannot be differentiated in principle from the recent decision of .this court in Boysen v. Frink, 80 Ark. 254. See also Hill v. Jebb, 55 Ark. 574, where we said: “The employment of a broker to sell a tract of land constitutes a special agency, and when a sale is made the only purpose of the agency is accomplished.”

The judgment of the court on the undisputed facts is contrary to law. It is therefore reversed, and the cause is remanded for new trial.