Richey v. McGinnis Investment Co.

MOORE, P. J. Having procured a competent offer to buy certain realty and an acceptance thereof by the owners who had listed the property with the corporate respondent, appellant as selling agent sued to recover his portion of the brokerage paid to the corporation. His suit having been rejected below, he demands a reversal of the judgment on the ground that his task as salesman was finished when the offer of the buyers had been accepted by the sellers.

Respondent corporation was a licensed real estate broker with respondent Donald M. McGinnis, hereinafter referred to as Donald, also a licensed real estate broker, as its president and general manager. The corporation, herein designated as respondent, employed appellant and respondent Husted as salesmen. There was no contractual relationship between appellant and Husted or between appellant and Donald. The compensation, to. be paid, to appellant or Husted. was governed, [147]wholly by the following rule of respondent: “Remuneration: Except by specific arrangement to the contrary, a salesman closing a deal is to receive 60 per cent of the commission derived from a given sale.”

In October, 1945, the owners of a hotel listed it for sale with respondent and agreed to pay a commission of 5 per cent of the selling price. For one month prior to December 3, 1945, appellant negotiated with Matlaw and Carr for the purpose of selling the hotel to them. About December 4, 1945, they signed an agreement* to purchase the hotel for the sum of $136,500 on terms prescribed by the owners, and delivered it to appellant,, having theretofore delivered their check to appellant for $5,000 to be applied to the purchase price, and an escrow was opened. That check remained in the possession [148]of Donald until December 7, 1945, and was then returned to Matlaw and Carr.

While appellant was engaged in negotiations with his prospective buyers Husted had been negotiating with the K-D Investment Company as a prospective purchaser, and on December 3, had succeeded in procuring the signatures of the owners and of the latter company to an agreement for the purchase of the hotel on terms identical with those contained in the contract executed by Matlaw and Carr, and an escrow was opened for the purpose of effecting a transfer of title to that company.