Waldteufel v. Sailor

ADAMS, P. J.

Plaintiff herein sued defendant, E. P. Sailor, for a balance alleged to be due plaintiff on account

[579]

of a commission claimed to have been earned by plaintiff as a real estate broker in effecting a sale of certain land owned by defendant and his brother. Plaintiff relied upon a writing, signed by defendant, E. P. Sailor, only, dated September 27, 1940, by the terms of which defendant authorized plaintiff to sell all or portions of said land, and agreed to pay plaintiff a commission of five per cent on any price defendant might accept for same. Plaintiff alleged that he had secured a purchaser for two different portions of said land who had entered into written contracts with defendant at a total purchase price of $17,108, and that defendant accordingly became indebted to plaintiff for commissions in the sum of $855.40, only $200 of which had been paid.

Defendant answered, admitting the execution of the written contract alleged by plaintiff and the securing by plaintiff of a purchaser as alleged by him, but set up, as a separate defense, that on or about December 5, 1940, defendant and plaintiff had agreed that the total sum to be paid plaintiff for his commission on said sales was to be the sum of $1,000, but that said sum was to be paid as follows: $100 out of the down payments made by the purchaser, Johnson, and the balance out of installment payments provided to be paid by Johnson, and then only if and when said installment payments were made by Johnson, and not otherwise. Defendant also alleged payment to plaintiff of $200 out of the down payment and one installment payment made by the vendee, but further alleged that no other installment payments had been made. He also alleged that the agreement of December 5th was agreed to be substituted for the agreement of September 27th, and that plaintiff had ratified and confirmed such substitution.

The cause was tried before the court which made findings that one Larkin J. Younce, a real estate broker, who was associated with and employed by plaintiff in his real estate business, had, while acting as agent for and with the authority of plaintiff, obtained from defendant the authorization to sell contained in the listing agreement of September 27th, and that thereafter Younce as such agent had secured one Johnson as a purchaser; that on December 5th Younce, acting as agent for plaintiff, and acting within the scope of his authority, agreed with defendant, E. P. Sailor, and with Charles W. Sailor that plaintiff should be paid $1,000 as commission on the two sales to Johnson, said sum. to be paid in part out of the down payments, the balance to be paid out of installments