
    NO. 8613
    COURT OF APPEAL PARISH OF ORLEANS
    MRS. ALFRED ARDLEY versus MAURICE J. PITTMAN
   Dinkelspiel; J.

This suit is for the recovery of the sum of $150.00;

Plaintiff alleges that xnxghe wss employed by the defendant to 3811 his property, Ho. 8439 Hickory Street in the city of Sew Orleans, for the price and sum of Eive Thousand Doll.rs, and that s'aid contract of employment which was signed by she defendant, appointed plaintiff the exclusive agent for the sale of said property, until the revocation of the said oonwot, which revocation under its terms must be by a. written sixty daye notioe; end alleging further that defendant did not revoke said contract, end 'whilst said contract was in existence, and in violation of its terms defendant sold e-id property for the sum of Five Thousand Dollars, without paving plaintiff the aforesaid three per cent commission, which amounts to $150.00, and for which defendant is liable.

To this petition there was filed an exception of no cause or right of -.otion, Same being overruled, defendant answers daoxjdcnuc ?-i..iitting his signature to the document in Ojuestion, but denies the t the words "or to any other party" v..-re in s'-id document when he sitgned it and that said words wer9 inserted after he had signed it, without defendant's knowledge or consent. Further avers that by verbal orders of defendant he instructed .il'inriff not to sell the property end 05.nccll.ed the said contract.

The issues presented are two-fold; first, were the word3 "or to any other p-*rty" inserted in the contract at the time same was signed by the defendant.

The contract reads as follows:

"I want ”-u to sell my property 8439 Hickory near Joliet, for the sum of Five Thousand Doll-rs or any less amount agreed upon, end do now authorise you as my exclusive egent to make the sale and to accept a deposit of ten per cent of the xxarasxty purchase price. I agree should you find s buyer or should the property be sold within sixty dsys after this oon- . or any o ther party tract expires, to any party solicited by you,/to pay your commission of three per cent on sale price «xxtexjmyxsxhsrxpxartyx whether title is acodpted or rejected by purchft.ser. This contract may be revoked by sixty days written notioe.
(Signed) M. J. Pittman
8429 Hickory St.
New Orleans, July 27, 1921.

The main portions of the oontract are in typewriting, save and except the location of the property, the amount, Five Thousand Dollars, three per cent, and after the words "solicited by you" there is "or to any other party".

The second defense to this petition, that the revocation of said contract, if any, vías to be given plaintiff in writing»

The evidence is conflicting, particularly as to the "or words in said oontract /to any other party". Plaintiff swears that these words were inserted at the time the contraot was signed by the defendant, whilst on the contrary, the defendant and his wife b4th positively swe-sr that when the contract was left at defendant's residence it had not been signed and was kept at the residence for several days before it was aigaaot sent back to plaintiff, and both defendant and his wife ewea,r that .they "or had examined the contract and that the words fto any other party" were not inserted and were not in the oontract at the time defendant signed it.

There are therefore two witnesses against plaintiff, and they both positively swear that the words were not in the oontract at the time same was signed.

i careful examination of this reoord has convinced us "or that these words /to any other partyn were not in the oontract at the time of signature, henoe defendant sold his property, had s. right under the contract, without these worde, to sell it without paying the commission.

We do not believe that the verbal withdrawal feom said oontraot oould hs.ve effect, it required the written notioe of sixty days to be given to plaintiff, and this was oonoe.ded not to have been done, but it is immaterial whether it was or not, defendant had a right to sell hfcs property without paying the oommissionjwhether he gave written or verbal notioe is immaterial.

Plaintiff must make her olaim oertain, To make it probable will not be sufficient.

It has been held by this Court:

"A broker is not entitled to commissions when he has not brought the vendor end the purchaser together, or his efforts have not been the procuring cause of the sale. In the absence of an agreement to the oontrary the principal is «xfc at liberty to sell the property by his own efforts, notwithstanding the employment of the broker."

James A. Brennan vs. H. M. Ansley et als. 3 Ct. of Appeal, 304.

Gottlieb vs. Walsh, No. 2259 of the docket of the Court of Appeal, the Court held:

Plaintiff did not bring the purchaser and vendor together end his right to sell was not exclusive; hence he cannot recover.

In the case of Freeman vs. Diboll, 11 Ct. of Appeal, page 199, it was held:

When the contract of a real estate broker confers upon him the exclusive agency to sell the property and negatives the right of the owner to- sell or negotiate for its sale, the broker is entitled to his commission, if during the time of the contract a sale is effected by the owner or by another broker on the latter's behalf.

Also see Kostmayer vs. Landry, 12 Ct. of Appeal 385.

Upon the whole we are convinced that defendant had a right to sell, his property; he did so; and therefore under the contract as we interpret it, plaintiff is not entitled to any commissions- claimed by her.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment of the court aquo be and the same is hereby affirmed, costs of both courts to be paid by the plaintiff.

-Judgment affirmed-  