
    Fowler v. Thomson.
    (Decided January 31, 1922.)
    Appeal from Hopkins Circuit Court.
    1. Brokers — Commissions.—A broker is entitled to bis commissions as on a sale of lan-d if be, at the instance of the owner, find and .present to the seller, a purchaser, ready, able and willing to buy the property at a price and on terms satisfactory to the seller.
    
      2. Contracts — Pleading—Quantum Meruit — Instructions.—Wliere the plaintiff declares upon -an express contract, and on the trial produces evidence in sujpport of dais .pleading, it is error for the trial court to instruct the jury uipon an implied contract and allow a quantum meruit recovery.
    LAFFOON & WADDILL for appellant.
    GORDON, GORDON & M'OO'RE for aptpellee.
   Opinion of the Court by

Judge Sampson

Reversing.

Appellee Thomson commenced this action in the Hopkins circuit court against appellant Fowler to recover of the latter $690.89, alleged to be due Thomson, a real estate agent, as commissions for the sale of the farm of appellant 'Fowler to one Whitfield in 1919. The petition avers “that on the 21st day of February, 1919, he (Thomson) made and entered into an agreement and contract with the defendant (Fowler), whereby the defendant placed in the hands of the plaintiff for saLe, as a real estate agent, four hundred acres of land, and authorized the plaintiff to sell or procure a purchaser for the said .400 acres at not less than $80.00 per acre, and upon such terms as, might prove satisfactory to the defendant, and that for his services the defendant agreed and promised to pay him a reasonable compensation, which was then and there agreed to be a sum equal to 2% per cent of the total amount of the consideration for which any of the said land might be sold.” Following this the petition avers that the plaintiff Thomson found and presented a purchaser to Fowler, who bought 326% acres of the land at the price of $85.00 per acre, or a total of ‡27,752.50, but that defendant Fowler refused to pay plaintiff his commissions, although the same were demanded of him and are long past due.

It is the contention of appellant Fowler, against whom judgment was, entered in the lower court for $690.89 as commissions, that the contract declared upon is an express one, and not an implied contract, and that the plaintiff, having declared upon an express contract, was not entitled to prove an implied contract or to have a quantum meruit recovery on an implied contract in the absence of an amendment of the pleading so as to support such implied contract. The answer controverts the averments of the petition, and in a second paragraph, affirmatively pleads facts tending to show that appellee Thomson did not procure or furnish a purchaser for the land, and was not entitled 'to commissions on the sale. The affirmative matter in the answer was -controverted •of record by agreement of the parties-. The evidence shows in substance that appellee Thomson approached appellant Fowler in February, 1919, and asked Fowler if he wanted to sell his farm, to which Fowler' replied that he would sell four hundred acres at $80.00 per acre, and pay Thomson a commission of 2% per cent if Thomson sold it at that price, but would not list the farm with Thomson for sale. Then Thomson told Fowler that he had a prospective purchaser for his farm, whom -lie would bring to look it over. A few days later Thomson did take a prospective buyer to look at the Fowler farm, but nothing came of this. Fowler then told Thomson that he would not take $80.00 per acre for the farm unless said proposition was accepted at once, but there is some evidence tending to show that there was an arrangement between Fowler and Thomson by which Thomson was to keep a lookout for a purchaser for the Fowler lands, and s,end -or take such person to examine the property, Fowler reserving the right to make the price and terms. Some weeks after the happening of the events above related, Thomson found Whitfield, who wanted to buy a farm, and Tliomsou told him of a certain farm in the neighborhood of the Fowler lands and started with Whitfield to look at the said farm, but in driving through that neighborhood Thomson went by the road which led by the Fowler farm and stopped the car and had Whitfield get out and look at the place, and then took him on and showed him the farm which they had originally started to see. This latter farm did not please Whitfield, but he liked the Fowler farm, and came back a second time or third time and looked at it. In the meantime Thomson called Fowler on the phono and told him that Whitfield was inclined to want his farm and would, likely purchase it and wanted to see Fowler about the price and terms, to which Fowler responded that he would make the price and terms to Whitfield. After several conferences Whitfield purchased a part of the farm of Fowler at the price of $85.00 per acre. When the deed was made and the transaction closed, Thomson approached Fowler and asked for his commissions, which being refused by Fowler, suit was commenced by. Thomson.

A broker with whom lands are listed for sale is entitled to bis commissions as on a sale of the property if lie find and introduce to the seller a buyer, ready, able and willing to buy the property at the price and on the. terms of the seller; or if he at the instance and request of the seller find and introduce a buyer to the seller, with whom the seller closes a deal for all or a part of the property, the broker is entitled to his commissions whether there was an express contract to pay commissions or not. Croxton v. Henry & Fleenor, 193 Ky. 318.

The trial court, in instructing’ the jury, ignored the express contract declared on in the petition and told the jury that if it believed from the evidence that Thomson, a real estate agent, found a purchaser for the lands in question and brought Fowler and Whitfield together, and that Fowler sold a part of his lands to Whitfield, and that the services of Thomson were rendered to the defendant Fowler under such circumstances as were reásonably calculated to lead a prudent man to believe that the plaintiff expected compensation for such services, then the jury should find for the plaintiff Thomson, such a sum by way of compensation as the jury believed from the evidence would be a fair and reasonable compensation for making said sale, not exceeding $690.89 the amount claimed. The state of the pleadings considered, this instruction was erroneous.

The generally recognized rule in cases where the plaintiff declares upon an express contract is to hold him to the averments of his pleading, and to nonsuit him if he fails to prove the express contract alleged, but undertakes to rely upon an implied contract, and have a quantwn meruit recovery in the absence of an amended pleading conforming to the proof. Newton v. Field, 98 Ky. 186; Price v. Price, 101 Ky. 28; O’Kain v. Davis, 186 Ky. 184; Smith v. Robinson, 185 Ky. 76. The facts in the last above cited case are very similar to the ones under consideration, and there we held that the express contract upon which the plaintiff declared was not 'sustained by proof of an implied contract, and that there was such a variance between the averments of the petition and the evidence as to entitle the defendant, who was being sued for commissions by a broker, to a peremptory' instruction in his favor in the absence of an amended pleading showing an implied contract and right to a quantum meruit recovery. This, rule is too old and well established to be varied or repudiated by a court when relied upon in cases where the facts are as in this litigation.

For the reasons indicated the judgment is reversed for proceeding's consistent with this, opinion.

Judgment reversed.  