
    Charlton & Lewis v. Wood.
    Contract Entire not Divisible. Beal Estate Agents. Plaintiffs agreed to sell defendant’s farm for $1,800, for a commission of $200. Defendant himself sold the farm for $1,600. Although the purchaser had his attention called to the farm by the newspaper advertisement of the real estate agents, yet as the sale was not in fact made by them, they cannot recover any thing for their services — not even the money paid by them for the advertisement, under the contract made by them with defendant.
    FROM KNOX.
    Lewis & Comfort, for plaintiffs in error.
    Cocke & Henderson, for defendants, said
    This suit was commenced by warrant, and the de fendant, Wood, having failed to appear, for reasons, assigned on the record, the justice rendered judgment against him for $200 and costs.
    Upon Wood’s petition the cause was removed by certiorari to the Circuit Court, where, at the return term, a motion was made to dismiss, but was afterward withdrawn. Therefore no question can arise upon, this record as to the sufficiency of the allegations of the petition as to the merits, or the reason for not taking the appeal.
    If there be any question at all in the case, it can only arise as to the sufficiency of the evidence to sustain the verdict, or as to the correctness of the charge of the presiding judge.
    The admitted facts are that Charlton & Lewis were real estate agents in Knoxville, and that it was a part of their business to sell lands on commission; that John Wood was the owner of a farm in Knox county, which he desired to sell, and that with reference to the sale of this, some sort of contract was made between him and Charlton.
    Wood and Charlton were the only witnesses to the contract, and they differ, to some extent, in their recollection of its terms and provisions. Charlton says that Wood came to him and offered to give him and his partner, Lewis, $200 if they would, sell for him the tract of land in question for $1,800, and that he undertook to sell it under that arrangement.
    Wood testifies that the bargain was that if Charl-ton & Lewis should sell the farm for $1,800 he would pay them $200, but that he reserved the right to sell it if he could, and if he should sell it he would not, in that event, be bound to pay them any thing.
    It is apparent that there is no direct contradiction by the witnesses of each other. Wood swears positively that he reserved the right to sell the property for himself, and if he did so he was not to pay the plaintiffs any thing. Charlton is silent as to this, but admits that his right to the $200 was dependent upon his ability to sell the land for $1,800. And so far as the law of the case is concerned the testimony of both is substantially the same. For the clear intention of the parties was that the right to the compensation of $200 should arise upon the sale for $1,800. An attempt to sell does not, and in the nature of things cannot, amount to a performance of the contract. And, in such case, the contract is not apportionable. 2 Parsons on Contracts, 520-21.
    If A., a merchant, agrees to pay B. $1,000 if he will carry important information to his correspondent at Lexington, Ky., within thirty-six hours, and B. makes the attempt, but gets no farther than Richmond, can he claim the $1,000, or any part of it?
    If one. man says to another, I will pay you $5,000 if you will obtain for me a deed for a certain tract of land for the price of $50,000, and the latter should make an honest endeavor to obtain the deed for the price mentioned, but should fail, can he claim any part of the $5,000 promised, only in case of complete success ?
    These questions can receive but one answer. Courts do not make contracts for the parties. They enforce the contracts actually made, and as made. If the stipulation is for success in the undertaking, and an extra compensation is promised for that success, it would outrage the intention of the parties to compel even partial payment in case of failure, however honest may have been the effort to prevent the failure. And it follows, as a" necessary consequence, that the Circuit Judge did not err when he charged the jury “ that if the jury should find from the weight of the evidence in the cause that the defendant, Wood, employed the plaintiffs in the cause to sell his land for him, and agreed with them that he would give them $200 for selling it, provided they sold it for $1,800;. then if the proof showed that the plaintiffs did in fact sell the defendant’s land for $1,800, in compliance-with this agreement, and that the defendant has not paid the plaintiffs for it, the .plaintiffs would be entitled to a recovery in this action; but if the defendant, Wood, did not so agree, the plaintiffs would not be entitled to a recovery for the $200; or if the jury should find from the proof that the defendant, Wood, reserved the rjght to make the sale of his. land himself in the event he should have a reasonable opportunity of so doing before the plaintiffs made-the sale, then, if the defendant did in fact make the sale himself, and not the plaintiffs, the plaintiffs would not be entitled to a recovery of the $200, although the defendant had agreed to give that sum if the plaintiffs would sell it for $1,800.”
    Charlton proves that after his agreement with Wood, he advertised the land for sale in the Knoxville Whig;, that this advertisement attracted the attention of a man named Calkins,. who at the time resided in the State of New York, but had a brother-in-law, whose name was David Lea, in Knox county; that Calkins wrote to Lea to obtain for him a fuller description of the land, which, upon application by the latter, was furnished by Charlton. But this was all. Charlton appears from the record to have made no further effort to effect the sale, or even to have made any inquiry about it.
    The evidence shows that Calkins, before seeing the advertisement, had determined to remove to Tennessee,, and that this determination was in no way produced by it; that he did come to the State, but never saw Charlton after his arrival, but did afterward purchase a tract of land from Wood, with whom alone the negotiations were conducted, which led to a consummation of the sale.
    An attempt was made on the trial to establish bad faith on the part of Wood, which signally failed. The plaintiffs endeavored to show that originally Wood sold the land to Calkins for $1,800, and afterward agreed to take $1,600. If this was so, the plaintiffs were not injured, because they had no right to claim any thing except upon a sale made by them. But the attempt was met, by clear evidence, that the first sale was verbal merely, and therefore not binding upon the parties, and was, besides, agreed not to be binding except the wife of Calkins would give her assent to it, which she withheld. Then the first contract was abandoned, and afterward a second contract entered into for the sale of the farm at the price of $1,600, and Wood could obtain no higher price.
    Erom all which it follows that no error of law or of fact can be assigned upon this record.
   McEaelaxod, J.,

delivered the opinion of the Court.

The plaintiffs brought this action to recover of the defendant $200, which they allege to be due them under a special contract. This contract, as proven bv Charlton,, one of the plaintiffs, was in substance this: The plaintiffs were real estate agents, and the defendant agreed to pay them $200 provided they would sell for him a certain tract of land for $1,800. The defendant, Wood, was also examined as a witness, and proves the same contract, but with the qualification that he reserved to himself the right, in the meantime, to sell 'the land if he could, in which event the plaintiffs were to receive nothing. The question was submitted to the jury to determine upon the proof whether the plaintiffs had entitled themselves to the $200 by making the sale for $1,800, as stipulated. The jury found for the defendant, a new trial was refused, and an appeal in error prosecuted.

That part of the Circuit Judge’s instruction to the jury excepted to and brought up in the bill of exceptions is entirely free from objection, and as the record shows that other instructions not excepted to were given, we must presume that the additional instructions applicable to the facts were given, especially as the record does not show that any additional charge was asked for and refused.

The facts in proof in regard to the sale are as follows: The plaintiffs, after they undertook, under their contract, to sell the land, caused an advertisement to be inserted in a newspaper published at Knoxville. This was seen by one Calkins, who resided in the State of New York, who thereupon wrote to his brother-in-law, Lea, residing in Knox county, for a more complete description of the land, which Lea obtained from Charlton, and sent him by letter. Cal-kins afterward came to Tennessee, not, however, for the sole purpose of purchasing this land. He did not call upon the plaintiffs, but applied directly to Wood, the defendant, and agreed with him to purchase the land for $1,800, but this contract was not formally executed, and performance was not insisted upon by Wood. But another contract was soon after executed between them, by which Calkins purchased the land from Wood for $1,600.

The question is: Hoes this proof sustain the finding of the jury in favor of the defendant? We think it does. The plaintiffs sue upon the special contract; to entitle them to recover, they must show that they have complied with their part of the agreement, and sold the land for $1,800. This contract cannot be apportioned. Courts can only enforce contracts as the parties themselves made them, and if the plaintiffs chose to make their right to any compensation depend upon effecting a sale for $1,800, then they must abide the contract; and if they failed to make the sale they of course, in that event, lose all their labor and expense in making the effort.

We cannot say upon this proof that they did make the sale, although their efforts were evidently instrumental in enabling the defendant to sell. Upon the assumption which the jury seem to have believed that Wood reserved to himself the right to effect a sale if he could during the time the plaintiffs were empowered to sell, then a sale by him would of course defeat the plaintiffs. However unjust this may seem, if the parties have so stipulated they must abide the result.

It is insisted that the plaintiffs were at least entitled to recover the value of their actual services, or the expense of their advertisement. If, after the plaintiffs had, under their contract, incurred expense in endeavoring to make the sale for $1,800, the defendant, without giving them a reasonable time to accomplish the sale, should put it out of their power to do so by selling the land for a less sum, then it might be a question whether the defendant would not be liable to the losses and expenses incurred by them. But this question does not arise in this case; the suit was not brought for this recovery; no proof was offered showing any amount claimed on this aspect of the case, or how much the recovery should be. And if any instruction was requested from the court on this aspect of the case, no exception was taken to it.

As we can not say that the verdict of the jury is not sustained by the evidence, and there being no error in the charge, the judgment must be affirmed.  