Prince v. Selby Smelting Lead Co.

THE COURT.

This is an action by plaintiff, as a real estate broker, to recover commission alleged to be due him for effecting a sale of real estate belonging to the defendant.

There is no dispute as to the facts, and the proposition of law involved is simple. The following is a brief synopsis of the steps in the transaction: On May 28, 1914, the defendant gave to the plaintiff a letter which in effect provided that if certain options theretofore given to plaintiff by the defendant, and which by their terms expired on June 15, 1914, were accepted, plaintiff should be allowed five per cent commission, of which, should the sum of seven thousand five hundred dollars be received by defendant, on account of a sale of the land made pursuant to said option, on or before June 15, 1914, one thousand five hundred dollars should be paid to plaintiff on account of said commission. On June 8, 1914,

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the defendant entered into a contract with A. D. Bowen, a prospective purchaser introduced by the plaintiff, for the purchase of the property involved, which contract departed from the terms of said options and stipulated that the total purchase price should be sixty-three thousand five hundred dollars, payable as follows: June 11, 1914, one thousand dollars; September 1, 1914, five thousand dollars; November 1, 1914, ten thousand dollars; November 1, 1915, $23,750; November 1, 1916, $23,750; and also provided that if the purchaser should fail to make the payments due on or before the first day of September, 1914, or on or before the first day of November, 1914, any payment theretofore made should become the property of the vendor, and all obligations under the agreement should cease and determine. Bowen paid the one thousand dollars, the first amount due, but no further payment was ever made on account of the contract. On June 12, 1914, the defendant wrote to the plaintiff a letter in which, after referring to the options held by plaintiff, and to which the letter of May 28th referred, set forth in detail the terms and dates upon which plaintiff’s commission would become payable under the contract with Bowen—this rearrangement of terms and dates following the particulars in which the contract entered into with Bowen departed from the options upon which" the letter of May 28th covering plaintiff’s commission had been based—and stated that the first payment of commission would be made when the five thousand dollars due from Bowen on September 1, 1914, was paid, and that plaintiff was to receive the balance of his commission when Bowen made the further payment of ten thousand dollars on November 1, 1914. It also specifically provided that if Bowen failed to carry out his contract concerning the payments due on November 1, 1914, and prior thereto, then the plaintiff should not be entitled to commission beyond the amount that might have been due at the time of Bowen’s default. The terms of this letter as a modification of his original agreement as to commission were accepted by the plaintiff in writing.