
    BRYAN v. ABERT.
    Real Estate Brokers.
    1. "Where an owner merely authorizes a real estate broker to find a purchaser for a certain price, the law implies a reservation by the owner to sell on his own account and free of charge for commission, to a purchaser not procured by the broker.
    2. But when a broker, so authorized, is the procuring cause of a sale made by the owner, he is entitled to his commission, even though the owner is ignorant of it at the time, and sells for a price and upon terms different from those fixed in his contract with the broker.
    No. 181.
    Submitted March 6, 1894.
    Decided April 16, 1894.
    Hearing on a bill of exceptions by the defendant in an action by a real estate agent to recover commissions on the sale of certain real estate.
    
      Affirmed.
    
    The Court in its opinion stated 'the case as follows:
    The appellee, Wm. B. Abert, instituted this suit in the court below against the appellant, Samuel M. Bryan, to recover the sum of $900 claimed as commissions upon the sale of a lot by said Biyan to Miss Litchfield for the sum of $30,000, and obtained a judgment for $750, from which this appeal has been taken.
    Abert was a real estate broker, and learning from Mr. Hornblower, an architect, that a friend of his wished to buy a residence lot, applied to Bryan for an agency to sell lots 2 and 3, in square 95, which belonged to him. Bryan authorized the sale of the lots at $4 per square foot net, meaning thereby that to obtain a commission he must find a purchaser at a price greater than that. Bryan, at the same time, reserved the right to sell the lots, or either of them, to any purchaser that Abert might not be instrumental in procuring for him. Lot numbered 2 contained 7,675 square feet, and at the price named would have brought $30,700. Abert at once saw Hornblower, and stated the terms and conditions of his agreement with Bryan and offered him the lots for his client at $4.25 per square foot. At Hornblower’s suggestion, Abert made a plat of the ground, one copy of which was given to Hornblower for his client and another to Bryan. Some days later Hornblower warfted to know of Abert if $25,000 would buy lot 2, and was told he could not entertain such an offer. He then referred Hornblower to Bryan. Some days later he called at Bryan’s office and saw Hornblower in conversation with him. At the end of this conversation, in which Abert took no part, he informed Bryan that Hornblower was the party with whom he was negotiating for the sale of the lot, that he was procured by him, and that no further negotiation should be had save through him, and that he could not sell to him or through him without paying him, Abert, a commission. Bryan then gave him to understand that there had been, and probably would be, no sale of the said lot, because he did not know if it could be arranged to have an incumbrance removed from the lot. On June 12, 1890, Bryan conveyed the lot to Miss Litchfield, who was represented by Hornblower, for the sum of $30,000.
    The above is substantially the evidence offered by Abert, who, in addition, testified that he had expended much time and taken much trouble in trying to sell the lot, and then proved the usual and customary rates of commissions charged by agents in Washington at that time. Abert also testified that Bryan had, previous to the interview, refused to sell for $30,000.
    Defendant’s testimony agreed, substantially, with plaintiff’s as to the contract between them. With regard to the sale, Bryan testified that he did not know with whom Abert was negotiating, and that about May 24, 1890, said Hornblower called on him and inquired the price of the lot.
    He finally agreed with Hornblower to convey the property to his client, Miss Litchfield, for $30,000, with certain conditions as to grading, building, etc. Bryan was then ignorant that Hornblower was the person with whom Abert had been negotiating, and made the contract in ignorance thereof. He further said that after Hornblower left his office, Abert, who was in waiting, spoke to him about the lot, but did not tell him that Hornblower or Miss Litch-field were the persons with whom he had been negotiating; and that Abert did not tell him Miss Litchfield was the probable purchaser until May 27, 1890. The contract with Miss Litchfield was signed May 26, 1890.
    It was conceded by the appellant, as appears from the charge of the court, that he “ could not controvert the evidence which discloses the fact to be that it was through Abert’s instrumentality that this purchaser was brought to the attention of Mr. Bryan, and that the sale was ultimately made to her by Bryan.”
    Among others, not necessary to be given here, the court gave the following special instruction at the request of the plaintiff:
    “ If the jury believe from the evidence that the plaintiff’s agency was the procuring cause of the negotiation between the defendant and Miss Litchfield, which resulted in a sale to her of the defendant’s property, the plaintiff is entitled to recover, even though the jury may further find that the negotiation was made with the defendant, and without his knowledge that the plaintiff’s agency was the procuring cause of said negotiation.”
    Defendant offered counter instructions which were denied, and also one to the effect that though notice by Bryan of Abert’s agency in causing the purchaser to come to him might not be necessary to make him liable, still plaintiff could not recover unless the evidence showed also that but for the action of Bryan in selling, plaintiff could have effected a sale of the lot for more than $4 per square foot. To the action of the court in giving and refusing the instructions aforesaid, defendant duly excepted.
    There is no contradiction in the evidence with respect to the contract between Bryan and Abert. The latter was to have no commission unless he could make a sale for more than $4 per square foot. As no sale was made by Abert under the terms of this contract, it figures in the case only as introductory and explanatory of the real cause of action, which is to recover the actual value of the broker’s services in procuring a purchaser with whom the owner was able to negotiate a satisfactory sale.
    
      Messrs. Riddle & Davis for the appellant:
    1. As the appellee did not sell the lot to Miss Litchfield, he supposed that in order to secure a commission he must not only secure the purchaser, but that the defendant must, while himself dealing with the purchaser, know that she was procured by him. That was part of his case, and he gave evidence to prove it as shown. Clearly this is the correct view. The appellant, if he sold the land himself under his conditional reservation, would expect to do it free from liability for commission, and he was entitled to know exactly the conditions under which he acted, and avoid or incur that liability as he might elect.
    He declares by his evidence that the sale was perfected before he was informed of the plaintiff’s agency in the matter. This balanced the plaintiff’s evidence, and left this decisive point of the plaintiff’s case unproved.
    2. The contract as shown was, that the lot was to be sold at $4 per foot net, and the plaintiff was to look for compensation in any excess over that price that might be realized. This was as specifically agreed upon as that the plaintiff should have any agency in the premises, and before the plaintiff can recover he must show that, had the plaintiff not taken the property out of his hands, he could have realized a compensation under this feature, and the court erred in refusing to so instruct the jury by its rejection of the defendant’s third prayer. Clearly, before the defendant can be charged by his acts he must at least be shown to have fully understood all the conditions under which he acted and incurred such charge as contended above.
    The case of Beale v. Creswell, 3 Md., 196, relied on by the appellee, does not sustain the court below. There, joint owners procured a broker to find a purchaser, and he brought one forward. Pending the negotiation one of the owners purchased the entire title, revoked the authority of the broker, and then sold the property to the party named by the broker. Held that the broker could not recover against him.
    
      Jones v. Adler, 34, id., 440: The court held that when by a special contract a broker is not to be paid a commission unless he sells at a stipulated price, a sale at such price is a condition precedent to recovering compensation.
    The further point also decided in this case is equally with the appellant, that if the broker introduces the purchaser to the seller or makes him known to him and a sale is made to him, the broker may recover; neither of which was incident to the case on hearing.
    
      Lincoln v. McClatchie, 36 Conn., 136, is perhaps the strongest case to be found for the plaintiff. Defendant put in plaintiff’s hands a house to be sold by him at 1 per cent, if he sold. The defendant might himself sell, and if he did no commission should be paid. It was sold by the defendant to a man who sought to buy through the instrumentality of the plaintiff. Held that he could recover.
    The case is distinguished from this case in this: There was no stipulation that the defendant was not to sell to the plaintiff’s purchaser, and of course was not entitled to notice. The court held that the reserved right to sell must be to a purchaser found by himself.
    
      Tyler v. Parr, 52 Mo., 249, is to some extent of the same effect. In this case the sale was made by the owner to the party procured by plaintiff. He had reserved no right to sell to any one.
    The case of Stissdorff v. Schmidt, 55 N. Y., 319, is a case dependent upon its own peculiar conditions, and reviews, some of the New York cases. The most that can be claimed for it is that a broker whose agency was recognized by the owner as valuable was held entitled to recover. There was. no special agreement with implied conditions as in this case.
    
      The case of Kilbourne & Latta was defended solely on the ground that the printed part of the contract was not made known to the defendant, and the jury, under the instruction of the court, found that issue for the plaintiffs. 6 Dist. Col. 310.
    
      Mr. Wm. Stone Abert and Mr. Randall Hagner for the appellee.
    x. If through the appellee’s instrumentality he was the procuring cause of this sale, after being authorized to find a purchaser, it was wholly irrelevant and immaterial whether the appellant was informed of the fact (that plaintiff procured the purchaser) either before or after he actually executed the deed conveying the real estate.
    Matters which became immaterial in the course of a trial, and worked no injury to the party, cannot be assigned as error. Probst v. Brock, 10 Wall., 528; County v. Bank, 103 U. S., 777; Lancaster v. Collins, 115 U. S., 227.
    2. Under all the circumstances proved in this case, it became the duty of the appellant at the time when he was endeavoring to guard against liability to pay commissions, to have enquired of Mr. Hornblower or of Miss Litchfield, as to whether the plaintiff or any other real estate agent had earned the very commission he was having the distinct understanding about. In the case of Lloyd v. Mathews, 51 N. Y., 124, it was decided that it is the duty of the vendor to enquire whence the customer derived his information. This New York case is almost identical with Tyler v. Parr, 52 Mo., 249, and Kilbourn v. King, 6 D. C., 310.
    The appellant testifies that the plaintiff “ did not even then reveal to the appellant that the said Hornblower or the said Miss Litchfield was the person.”
    3. The previous decisions rendered on appeal in this District all announce the doctrine, that the real estate agent becomes entitled to his commission when he shall have procured a purchaser at the owner’s price and terms who is ready to close and able to perform the contract. Mannix v. Hildreth, 2 App., D. C., 259.
    4. The appellant insists that the appellee did not perform the condition precedent which was to entitle him to any compensation; but the appellant is estopped from taking advantage of his own act which prevented performance.
    The conduct of one party to a contract which prevents the other from performing his part is an excuse for non-performance. U. S. v. Peck, 102 U. S., 65.
    5. Where the terms of sale are fixed by the owner, in accordance with which the agent undertakes to find a purchaser, if through the instrumentality of the agent he is the procuring cause of the negotiations with the owner, and he thereupon voluntarily reduces the price, or the quantity of land, or otherwise changes the terms of sale as proposed to the agent, and the sale is consummated, the agent is entitled to his commission. Jones v. Adler, 34 Md., 440; Keys v. Johnson, 68 Pa. St., 42; Martin v. Silliman, S3 N. Y., 615 ; Nesbitt v. Helser, 49 Mo., 383 ; Stewart v. Mather, 32 Wis., 349; Lawrence v. Atwood, 1 Bradw. (Ill.), 217; Lincoln v. McClatchie, 36 Conn., 136; Aringto7i v. Cary, 5 Baxter (Tenn.), 611 ; Green v. Bartlett, 118 E. C. L., 985 ; Anderson v. Cox, 16 Neb., 10; Coleman v. Mead, 13 Bush (Ky.), 358-
   Mr. Justice Shepard

delivered the opinion of the Court:

The effect of the reservation by Bryan of the right to sell on his own account, and free of charge for commission, to a purchaser not procured by Abert, was simply to make express that which the law implies in all cases where the owner merely authorizes a broker, or any number of them, to find him a purchaser. Wylie v. Bank, 61 N. Y., 415.

It has been conceded, and the proof plainly shows, that the purchaser was found by Abert, and that he was the “ procuring cause ” of the commencement of the negotiations which resulted in the sale. Were it not for the question of the effect of the want of notice or knowledge by the owner when he negotiated the sale, that the agent of the purchaser was the same person with whom his agent had been in negotiation, there would be little difficulty in the case. For it is well settled that where the owner fixes a price and contracts with an agent to sell thereat, who enters into negotiation with a probable purchaser, and the owner, with knowledge thereof, himself enters into negotiations with the same person and voluntarily reduces his price, or otherwise changes the terms of sale given to his agent, without notice to him, or abandonment of the effort on his part, and thus effects a sale.in person, the agent is nevertheless entitled to a reasonable commission for his labor and services. Jones v. Adler, 34 Md., 440; Stewart v. Mather, 32 Wis., 344; Keys v. Johnson, 68 Pa. St., 42 ; Coleman v. Mead, 13 Bush, 358 ; Anderson v. Cox, 16 Neb., 10; Lawrence v. Atwood, 1 Bradw. (Ill.), 217 ; Lincoln v. McClatchie, 36 Conn., 136. Any other rule might work great injustice to an agent by placing it within the power of his principal to avail himself of his services in finding the purchaser, and then to defeat his claim to compensation by reducing the price in an amount less even than the customary or agreed commission would amount to. One party to a contract cannot, by rendering it impossible for the other to carry it out, set up the failure in bar of his right to recover compensation for a partial performance, or for the value of time and effort expended in a bona fide effort to perform. U. S. v. Peck, 102 U. S., 65.

The plaintiff testified to the actual knowledge by the defendant of his agency in procuring the purchaser before the contract of sale was made, and there are some strong corroborating circumstances in support of the truth of his statement. But defendant as positively denied this knowledge until after the sale had been closed. As the question with respect to the truth of these conflicting statements was taken from the jury by the charge of the court informing them that proof of knowledge was not necessary to plaintiff’s right to recover, we must consider the case as if the jury had in fact-found that the defendant did not have this knowledge before making the contract of sale.

If Bryan made the sale to Miss Litchfield without actual' knowledge that Abert was the procuring cause of the negotiation between them, is he nevertheless liable in this action?' The jury were told that he was, and were left no other alternative than to return a verdict against him for some amount at least. Was this charge correct? " The answer is not a. ready one; but after a careful consideration of the principle involved, and the authorities bearing thereon, we are constrained to hold that it was. The situation of the parties was not exactly equal. Justice seems to be on the side of the plaintiff. Defendant knew, when approached by the agent of Miss Litchfield, that plaintiff was endeavoring to find a purchaser at the price given him, and had made an attractive plat of the lots to assist in the effort. It does not appear that he himself had advertised the property or hunted a purchaser. According to his own evidence, he saw plaintiff and talked with him immediately after Miss Litchfield’s agent had left him, and yet did not mention the negotiation to-plaintiff. For aught that he knew, plaintiff might continue his efforts to find a purchaser. He ought to be presumed to-know that if he availed himself of plaintiff’s services and made a sale to a purchaser actually found and stimulated to the purchase by plaintiff, he could not escape paying the reasonable value of his services by rendering it impossible for plaintiff to perform the actual contract. Knowing that he had not himself found the purchaser, it would seem reasonable to impose upon him the duty to inquire of the proposed purchaser if plaintiff had anything to do with causing his inquiry and proposition to purchase. Had he inquired of the purchaser, we must presume that he would have learned the truth. Learning it, he might have protected himself, either in fixing his price, or by notice to and some-additional understanding with plaintiff. Having failed in this regard, is it not just and reasonable that he, rather than the unoffending agent, should be made to suffer the consequences? This doctrine, as well as being reasonable and just, has the support of some courts of high authority. Lloyd v. Matthews, 51 N. Y., 124 ; Sussdorff v. Schmidt, 55 N. Y., 319; Lincoln v. McClatchie, 36 Conn., 136. And we bave been referred to but one case which seems to hold to the contrary, the reasoning of which is not so satisfactory. Rees v. Spruance, 45 Ill., 308.

In the case of Sussdorff v*. Schmidt, supra, the purchasers of the property heard of it and were induced to offer to buy through the efforts and advertisement of the agent, though they did not see him and did not even know him. They entered into negotiations with the owners without disclosing the fact, and the owners had no knowledge of the agent’s instrumentality in bringing the purchasers to them, until after the sale had been closed. In affirming the agent’s right to compensation] the court said: “ If he was the procuring cause of this sale, his right to compensation would not he affected by the circumstance that the defendants were ignorant of it at the time, nor should he be prejudiced by the acts of others.” ,

We find no error in the record, and the judgment must therefore be affirmed, with costs to appellee; a?id it is so ordered.  