McDonald v. Bernard

NOURSE, J.

Plaintiff sued as assignor of two real estate brokers to recover the commission claimed by them to be

[718]

due for their services in connection with the proposed exchange of real properties. Plaintiff had judgment for $3,000, without interest, from which defendant has appealed on a typewritten transcript.

The services were performed in accordance with the terms of a written contract wherein defendant promised to pay a commission of $3,000 “upon acceptance of this agreement” by the owner of the properties which were to be conveyed to defendant. This acceptance was procured in writing and deeds of conveyance were duly executed, but, before defendant’s deed was recorded, his wife recorded a declaration of homestead upon his property and the exchange was not completed. Though the property owned by defendant and proposed to be exchanged by him was his separate property, the wife opposed his plan to sell or exchange it and notified the brokers before the commission agreement was executed that she would not execute a conveyance of the property and would do all in her power legally to prevent the exchange. Of this the defendant was fully aware at the time he executed the contract with the brokers.

This constitutes the only defense raised by appellant to the payment of the commission. It is argued that the brokers, knowing the opposition of appellant’s wife to the exchange, entered into the contract at their peril and, therefore, may not recover. There is no charge of fraud or misrepresentation; no claim that appellant was not at all times the sole owner of the property and able to give clear title except for 'the lien of the homestead created by his wife.

The rule of law involved is simple and well settled. The appellant knew of his wife’s objection to the exchange when he employed the brokers to procure an acceptance from the owner of the other piece of property. It may be that he thought he could satisfy her objections if he had the exchange contract signed, or that he would complete the exchange without her consent, or that she might change her mind, but these are matters with which the brokers were not concerned. They were employed to procure the acceptance of the other owner and they performed that service in strict accordance with their contract.