
    Rozell Mc Williams vs George W.Soule
    No.8455
    Charles F.Claiborne,Judge.
    June 25th 1923.
   Charles F.Claiborne,Judge.

Plaintiff claims compensation for services rendered He bases his suit upon the following contract!

___ "For and in consideration of the sum of $1000 receipt of which is hereby acknowledged,I¿G.W.Soule a .resident of Camp Walton^Fla.hereby grant to Chester W.Brown,Winfield W.Gauche, H.J.Ledoux,I.B.Rennyaon and R.Mc Williams,the exclusive privilege of purchasing the property known as the old .Jockey Club property,situated on Esplanade Ave adjoining the St;Louis Cemetery Ho.3 with following outside measurements,to-wit; (then follows the description) together with all rights,ways privileges,improvements^ or advantages of said property,measurements being more or less,for the sums and price of $65,000 oash to me,provided that on or before April 15th 1218 ,the parties named shall make a deposit of $6600 to bind the sale,in whloh event they will be allowed until April 28th 1912 to have, titlq examined and to take title to the property.! will pay(R.Mc Williams a commission of 8 l/2 $ for effecting-sale,when act of sale is passed.In the event that sale is effected the $1000 named herein shall be considered as part of the purchase price of the property,but,if the sale is not effected this amount is forfeited to me without claim 6n the part of any one."
Signed March 12th 19^2.
This suit was filed April 26th 1916
The plaintiff alleged:
" That by mutual agreement entered into between the proposed purchasers,one of theirs number,to-wit I.B.Rennyson, took title to the said property in his name,the said transfer being made him by the said Soule on the 9th day of May 1912 at the price as stipulated in said agreement,at which time 'the commission of 2 l/2 f due petitioner under said agreement was :due and payable,hut which said commission-the'.Said Soule, failed and-refused and still refuses to apy petitioner,notwithstanding amioable demand;
"That the said Soule is,as stated^f Mississipi^ add has been absent from the State 'ever since the passing of said act of sale by him. to the said Rennyson,and petitioner,not desiring to submit his cause of action to the Courts of Mississipi, has refrained from filing said suit until the said Soule should •; be found within the Jurisdiction of this Court".

The plaintiff claims $1625 with legal interest from May 9th 1912 .

The defendant filed an exception of non cause of action.

Thereupon the plaintiff filed a .supplemental petition averring"that the transfer oi the said property was- m&de'. ■■ to the saiij^l .Rennyson on the 9th day of May 1912 by act- of,; sale passed before Felix J.Puig N.P.on that day,duly registered;C.O'i': B.247 folio 445,the said Soule thereby agreeing-by reason-of the'’-I,'.,;-; transfer so made by him to the said-Rennyson,that the said' - transfer should be made to the said Rennyson,one of the Signéisof the offer to purchase said property,instead of ■«*& to- all -.ó?'. .50 those who had agreed to byy same, they-all having agreed. ''tS^retb,-'4^|' and the said property being transferred, to the said Rennyson fp)?'A¿''.',{ the price agreed upon,but the said Soule consenting,as' is show^.'-ÍV.r .. ' . . ' • . ' ' - Aíí j by said act', that the same should be sold him upon different terms of credit".' A.

Answering the original and supplemental petiticn.thé’' defendant admitted that the plaintiff was',a real estáte ’ágeáSbi s-tii ; ' -V %<•.:' he admitted that he had . signed tile contract'.'sued ón,bBt.'.4^^^|:|fi' that the conditions of. said contract'.were .cdmplie¿,w^tSf.bis^^i.S% part of the other parties thereto,or • that, tie .'.sái’e'fáoiMi^^ by said contract was ever made^he further averred that the property v;as transferred to Rennyson on Hay 9th 1912 after the contract sued on liad ceased to be in force,by the failure of the other parties to comply with its conditions,and by the expiration of the time limit stipulated in said contarct;that the transfer to Rennyson ivas an ontirely different transaction from that contemplated in the contract sued on-being on terms entirely different from those stipulated in said contarct,and was effected without any assistance from the plaintiff herein;that the plain* tiff made no claim for a commission a Jr the time of the transí er to Rennyson or during the several days defenda2it remained in the City after the transfer to Rennyson;that the only reason defendant consented to allow plaintiff a commission was the cash consideration of the sale;that the only cash received in the transfer to Rennyson was Six Hundred dollars and the balance in notes payable at one,two,and three years, the whole of which were never paid,and a large portion of the property was retransferred to him.

The exception of no cause of action was overruled in hay 1919 and judgment rendered for defendant on November 3rd 1921.

The plaintiff has appealed.

It was admitted 04 the trial that the sale by Soule to Rennyson on.Kay 9th 1912 was for $600 cash and the balance in notes payable in one,two,and three years.

Plaintiff testified that the five purchaser^ named in the contract assigned their interest in it to Rennyson,and that he Vías active in getting the deal through'.

Mr Rennyson testifielT'that four gentlemen came to his office and offered to let him in on a syndicate to DUrchase. the property;he consented and put up $200;the plans of the syndicate did not materialize; the other members of the syndicate, -«¿signed their interest to him;subsequently Mr Longshore induced him to tahe the property over on a contract which he made with Mr Soule to purchase the property for a given amount and to divide the profits5that was after the first deal had fallen through;it was a separate transaction with'which Mr He Williams had nothing to do;the second transaction was conducted by Soule Longshore and himself;he himself negotiated with Mr Soule .

Frank A.Longshore is a son in law of the defendant; the two deals had no connection with one another;he went to Rennyson's to get him to take over the property because the fiwe members of the original syndicate could not comply with-the contract and di not;Hc Williams rendered no assistance in effecting the sale by Soule to Rennyson.

The Solution of this case rests in the answer to the question;was the sale to Rennyson ah execution of the combo tract Sued on? If it was^plaintiff is entitled to the commission promised by the contract;it it was not,then he.is not entitled to a commission.

Under the evidence it is certain that the contract sued on vías never consummated and that the sale to Rennyson was a separate and distinct transaction for two reasons.

/ — A compliance with that contract depended upon making a deposit of $5500 before April 15th 1912,and the title v/as to be passed on April 28th 1912 .Neither Vías done;the contract expired by limitation.

C.C.2045 (2040) " The dissolving condition is that Which,(when accomplished^operated the revocation of the obligation, placing matters in' the same state as through the obligation had not existed",

0,0.2046(2041) A resolutory condition is implied in all commutative contracts,to take effect in case either of the parties fio not comply with bhe his engagements and etc.

0,0.2047 (2042) xx when the resolutory condition is an event,hot depending on the Will of either party,the contract is dissolved by right" and etc.

This contract was a promise of sale in the nature of an option.In the case of- Jennings vs Houssiere 119 La 793 the Supreme Court said,on p.852 :"If he merely secured an option^ then,by failing to make the fourth quarterly payment within the time fixed for the exercise-of the option,he or his assigns, forfeited all rights under the contract,and there is an end of the matter 22 A 280 ,It is clear that if I aeree- to be bound on the condition,or provided,you do a certain thing within a cerr tain time^for example,if I agree that you shall have the exclusive right to exploit my lands for minerals,provided you begin operations within six.months,or pay me in advance of the expiration of the six months |50 for a prolongation of the terms, and you fail to do the thing thus stipulated to be done,I am’not bound xxx.It would seem to be a plain proposition that if I agree to lease you my uouse on condition that you pay me'^the rent in advance,and you fail to do so,I am.under no obligations to you.An option must be exercised within the time limit,on the right will be lost".quoting numerous authorities.

When a broker fails to make a sale within the time specified in hid contract,his rights come to an end,and he is not entitled to any commission. 9 C.J.587 No.13 19 CYC 240.

II The plaintiff and three of his associates had abandoned the contract and had transferred all their rights thereunder to Rennyson.Rennyson afterwards entered into new negotiations wSfth Soule and purchased the property from him tinder new terms 'of sale far less advantageous to Soule,§600 cash in a price of §65,000,taking the chances of payment which was not made infull.The sale vías not made on the terms stipulatedvin the.-oontraot sued on,nor to the same\parties,in other words it x/lvi nil In Ill'll' I )"•*- •-“-**"**W "*** ' * .Tn-y was not made bgrplaintlff and he is therefore riot^eHtritdedHse-jj£Q commission stipulated in the contract.

A broker is not entitled to a commission when the owner effects a sale with a purchaser originally procured by the broker- after the negotiations with the broker have come to an end.In Ford vs Shaffer 143 La 635 the Supreme Court said on p.636:

"She theory of the plaintiff's suit seems to oe that he had vested interest in any sale that might be made to the man whom he introduced as a prospectiife púrchaser.The doctrine wh'iohthe Court has recognized to the contrary is that a broke who has failed in an attempt to effect a sale is not entitled to a broker’s commission on a sale made afterwards by the principal to the person to whom the broker tried and failed to sell the property.132 La 817-134 La 847.

" If a broker attempts unsuccessfully yo effect a sale-of lands,and his proposed purchaser abandons the iijléa of -buying,but he is afterwards induced to do so 43ae by the principal or by another person,without being in any way influenced by the broker.the latter is not entitled to any commission'. Lewis vs Manson 132 La 817- Sec 9 C.J.p.602 S-89- See also 4 Ruling Case Law 305 -21 L.R.A.N.S.328.

Judgment affirmed.

June 25th 1923.  