
    NO. 8136
    COURT OF APPEAL PARISH OF ORLEANS.
    MRS. JAMES WITTENBERG versus CHARLES A. WALSDORF.
    
      
    
   Dinkelspiel; J.

This suit is based on t'ne following oontraot:

" New Orleans, April 8th,19191
Mrs. Janes Wittenberg, Real Estate Agent, City.
Dear Hadan:
I hereby appoint you as my agent and exclusively authorize Jou to sell the follov/ing described property: Ho. 1138 So. Carrollton Avenue, the store, oontents, building in rear, eto. for the price and sum of Twenty Two Thousand Dollars oash. Should you find a buyer or prove instrumental in finding one or should the above mentioned property be sold by me or any other person during the term of this authorization I will nervertheless pay you three per cent, commission on the purohase prioe for your services rendered. The commission being payable when agreement to purohase is signed. I require a oash deposit of ten per oent to bind the sale and therefore authorize you to oolleot same. This agreement may be cancelled bv giving slx-by days written notioe.
(Signed) Charles A. Walsdorf. Address 1132 So. Carrollton Ave. Phone Gal. 1111."

Alleging further that the olause said contract containing the special agreement "Should you find a buyer or prove instrumental in finding one or should the above property be sold by me or any other person during the time of it* this authorization, I will nevertheless pay you three per cent commission on the pur-ohase price for your services rendered.

That said contract or agreement has never been canoelleft and is still in foros and effeot and further alleging that under the terms of said oontraot petitioner is entitled to receive three per cent on the purohase price, the property having been sold for Thirty Thousand Dollars, the olaim is for Nine Hundred Dollars, for whioh judgment is prayed.

The answer of the defendant admits his signature to the oontraot in question but denies that plaintiff sold his property as she had agreed to do but on the contrary the property was sole through the instrumentality of Mr. Onorato, he was paid his oom-mlssion and rnerefore defendant is not hound hy the oontraot in question because he had oalled same off both through a phone message and through a letter written to plaintiff and whioh tas ao-oepted by her.

The defendant was oalled xxm as a witness for cross examination under the act and in his testimony admits the oontraot in question and arrangement to meet several purohasere, Mr. Kaufman and Mr. Dayries, at the office of plaintiff, who plaintiff ha<> seoured as prospective purchasers; that subsequent to the conversation whioh produced no effects defendant testifies that he phoned to plaintiff and amongst other things things said that Mr. Kaufman had told plaintiff that he defendant wanted entirely too much and then added "I-:m glad to know that I think my price is too low;"fcxac he admits further that he wrote a letter under whioh Mrs. Wittenberg's contract in question was signed and axm under whioh Mrs. Wittenberg acted;subsequently the defendant testifies that in the conversation hevlng revoked the contrs.ct through phone he was told to write a letter and he did write the letter and mailed it, oalling the oontraot off, he further testifies that nothing coming out of this oontraot in the shape of a sale and not having heard from Mrs. Wittenberg, exoept as testified to by him, he subsequently employed another real estate agent, Mr. Onorato, who pold this property to Mr. Dayries, for the prioe and 3um of Thirty Thousand Dollars and he paid Mr. Onorato his commission of Fifteen Hundred Dollars.

The plaintiff, Mrs. Wittenberg in her own behalf testifies first to the fact that she received a letter from defendant about the sale of drug store and plaoe of business and aot-lng upon this she oalled to see the defendant who signed the oon-traot in question, she testifies further that soon after she had the contrsot she heard that Mr. Dayries and Mr. Kaufman had purchased the site at the oorner of Broadway and St. Charles, she Immediately went to see Mr. Kaufman, offered him the drug store in -question and advanoed arguments to try and induoe him to purchase it, Mr. Kaufman told her "my partner Mr. Dayries is hunting for a drug store at Napoleon Avenue and St. Charles" and"I want you to meet my partner and give him partioulars of the drug store" she further testified substantially that she met Mr. Dayries and endeavored at the time and subsequently to sell him this establishment and introduoed these gentlemen to the defendant and got them to visit the drug store in reference to the purohase, these gentlemen then made an offer to rent the store and by the stook dollar for dollar, which offer defendant rejected, she further testifies that she saw 8M Mr. Freund, personally onoe and that she had a number of conversation with him over the phone, that he was a druggist,and she had no authority to advertise this property, he said he wanted everything done quietly and she positively testifies that she neither reoeived a phone message nor the letter sworn to by the defendant that he had mailed, calling her contract off; she is supported in this so far as the letter is oonoerned by her husband who is her agent and the only authority in opening her mails, she also substantially testifies that she used every endeavor subsequent to what is heretofore testified to to sell and she finally learned that defendant had sold and therefore she warned him that she would Claim her commission*

We have thus gone into the main testimony for plaintiff and defendant in this case and the contention of plaintiff is first that there is nothing in this record to sustain the defendant except the statement of defendant that he telephoned plaintiff to cancel the contract, to which she consent and subsequently wrote her a letter to the same effect.

It was held recently by o$tr Supreme Court in the case of MoWillisms vs. Reifch, which will be found in the So. Rep. pages 1913-1914, supplemental sheets, and in that case the Court laid down the doctrine:

"The lady clerk In defendant's offloe testified to the letter hairing been mailed, properly addressed, but as she says nothing of the postage having been prepaid, no presumption arises of the letter having been received. 33 C.J, 99j 33 A. & E. Eng. of L. 1355. Moreover plaintiff testifies that he opens hiB mail himself and the letter was not received. "

And those faots as stated by the Court in that oase are applicable in the oase quoted and are in the main applicable here.

The next contention argued and submitted by brief ixx by defendant's able counsel is that plaintiff Is not entitled to any commission beoause there is no provision in the contract as to the term of its duration and the law fixes this duration at a feasonable time and ten months is oertain more than a reasonably time, unless during that period the agent was making continuous offers and active efforts to affeot a sale and the burden of prooij is upon plaintiff to show what if any effort she made during that period and they site the oase of Lewis vs. Manson, 133 La. as enforcing that principle.

We have read that case very carefully and we are not in aooord with the views expressed by counsel.

A verbal agreement not carried out as in that oase the Court held under the circumstances there stated could not be enforced on the other one.

Our own Court in quite a number of oases has held the reverse of the proposition suggested and argued by counsel. In the oase of Freeman vs. Diboll, 11 Court of Appeals p. 199, where the Court held;

"The fact is conceded and in any event is established that the sale of the property was actually affeoted during the term /iiwi of the contraot of employment, but defendant contends that this sale was consummated without plaintiff's intervention or as-i 8lstanoe end that since he was not the proouring oause thereof, he is not entitled to the commission.
If, however, as plaintiff urges, the procuration conferred upon him the exclusive right or agenoy to sell the property during its term, this defense oennot avail, since in that event plaintiff would he entitled to hie commission, whether the sale was procured by himself., by the defendant or through another broker."

In the oaee of Stanley A. Hervey vs. Harry Hirsch, No. 7518, Court of Appeal, the syllabus reads:

"A contract by whioh an owner places his property for sale in the hands of a real estate agent end promises to pay a commission aocepted by the agent who receives the contract and aots upon it, ie not void as a nudum pactum.
A contract by vrtiich an owner binds himself to pay hie agent a commission on the sale of the property, even if the sale be effected by the owner himself, is not null and void for want of consideration."

The learned Judge of the Court aqua heard and saw these witnesses and he had muoh better opportunities from their appearance and from their testimony to Judge the merits of this oase, thei we have; he, in his Judgment decided this case in favor of plaintiff and we see no reason to change that decree.

For the reasons assigned it ie ordered, adjudged and decreed that the Judgment of the Court aqua be and the same is hereby affirmed with costs of both Courts to be paid by the defendant.

«■Judgment Affirmed*  