Harvey v. Berger

SHAW, J.,

pro

tem.

The plaintiff, who was a licensed real estate broker, brought this action to recover a commission alleged to be due him on a sale of real estate made for the defendant. Judgment was given in favor of the plaintiff, from which the defendant appeals.

The plaintiff showed that he had a written authorization from the defendant for the sale of the property, in which she agreed to pay him a commission

therefor;

that he procured purchasers ready, able, and willing to purchase the property on terms conforming to this authorization; that he obtained from said purchasers a signed written contract to buy on the said terms; and that he notified the defendant of the contract and read it to her over the telephone, including the buyers’ signatures, and was told by the defendant that she approved thereof. These facts are sufficient to entitle plaintiff to recover, unless there is something in the showing made by the defendant to countervail their effect. Defendant’s contentions on this appeal are in substance two: First, that plaintiff was guilty of misconduct of such gross character as to forfeit his right to commissions; and, second, that the agency contract was in effect abandoned by both parties and was therefore no longer in force when plaintiff made the sale.

After the purchasers had signed the written contract for the purchase of the property, the plaintiff, through a subagent, told them to take possession of the property without waiting for the consummation of the transaction, which they at once did. This was in excess of the plaintiff’s authority, which was merely an ordinary real estate broker’s contract authorizing him to procure a purchaser, but it was not in violation of any express instructions upon the subject. Defendant, upon learning that the purchasers had taken possession, demanded that they at once vacate the premises, and declined to consummate the deal unless they should comply with this demand. They failed to do so, whereupon defendant employed an attorney and brought an action of ejectment against them, and a considerable number of days elapsed before they finally surrendered the pos

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