
    The Frederick A. Schmidt Co. v. Mall.
    (Decided February 25, 1935.)
    
      Messrs. Bolle, O’Boimell & Gash, for plaintiff in error.
    
      Messrs. Nichols, Morrill, Wood, Marx & Ginter and Mr. Milton H. Schmidt, for defendant in error.
   Hamilton, J.

The Frederick A. Schmidt Company, plaintiff in error here, brought suit against Edwin A. Mall, defendant in error, seeking to recover a commission claimed under a contract for the sale of certain real estate belonging to Mall. The contract under which the Schmidt company claims the right to recover the commission is as follows:

“In consideration of your efforts to secure a purchaser, I agree to pay you a commission of four (4%) percent on the amount for which said property may be sold or exchanged, and further agree that you shall have the exclusive right to sell said property for a period of three months and that you shall be entitled to your commission if the property is sold or exchanged by you, or the undersigned, or any other person at any price acceptable to the undersigned, during the existence of this contract.”

The claim of the plaintiff in his petition is that under the contract, on or about the seventeenth day of August, 1932, its duly authorized agents submitted said property to Mr. and Mrs. C. M. Robertson, Jr., which the defendant knew; that during the negotiations of the plaintiff with Mr. and Mrs. Robertson, Jr., the defendant requested that he be permitted to deal directly with the' said Robertsons; that said permission was granted by the plaintiff, and that shortly thereafter the said Robertsons, Jr., purchased said property from the defendant, and the plaintiff now claims that by reason of that sale it is entitled to a commission under the contract.

The defendant in his answer admits the execution of the contract, and denies generally all the other allegations of the petition.

There is evidence in the record tending to show that an agent of the plaintiff company sought to interest Robertson, Jr., in the property, but Robertson, Jr., stated he was not interested. Robertson, Jr., denies that the agent of the company was the one who sought to interest him in the property, but states that his attention was called to the house by one Mendenhall, a friend of his. However, nothing was done looking to the completion of a sale until October 10, when the defendant Mall telephoned to Mr. Casey, an agent of the plaintiff company. The substance of that telephone conversation, as stated by Mr. Mall, is as follows:

“A. I said, ‘Lou, I just had a phone call from a fellow by the name of Robertson and he wants to see my property and I said he don’t want to deal with a real estate man.’ I had.told Mr. Robertson that I was pretty sure the contract had expired and to come on out. After my conversation with him I thought about when that would expire and I got the contract out and looked at it and I saw it still had five days to go. I then felt that I was bound to call up the Frederick Schmidt Company as the only decent thing I could do and I told Mr. Casey just what I am telling you now except I was talking to him.

“Q. Did you tell him that after referring to the contract you saw it expired on the 15th? A. That is what I told him, that it still had five days to run and then I said ‘Lou, what shall I do?’

“Q. What did he say? A. He said ‘let the man come out.’

“The Court: In this telephone conversation with Mr. Casey, did I understand you to tell bim who the prospect was? A. Yes, I did.

“Q. Did he say anything about him being somebody that he had talked to? A. Yes he did.

“Q. What did he say about it? A. He said, ‘Oh, that is the man I sent out last week to your house. ’

“Q. Had Mr. Robertson been there the week before? A. No. If you will recall Mr. Robertson, Sr’s, testimony, he said he met Mr. Robertson, Sr., at this house on Observatory Road and he told him about this house on that day.

“Q’. He told you at that time that he sent him out to see the house? A. That’s right, yes.

“Q. Did you speak to him about whether or not he would claim the commission or anything of that sort? A. No sir, that was not mentioned, absolutely not.”

This was the only activity on the part of the Schmidt company or its agent concerning the house. Finally, on the twenty-sixth day of October, an agreement was reached between the defendant Mall and Robertson, Jr., upon a large reduction in the purchase price, and a signed offer and acceptance for the purchase and sale of the property was entered into between the defendant Mall and Robertson, Jr.

It is to be noted that under its terms the contract with the Schmidt company had expired on the fifteenth day of October, some 10 or 11 days before the contract of sale was entered into with Robertson, Jr. Thus we see that the claimed right on the part of the plaintiff to recover was based on the fact that an agent of the plaintiff company had something to do with Robertson, Jr., looking at the house during the life of the contract. It is not claimed that any terms were entered into or that Robertson, Jr., was disposed to enter into a contract through the plaintiff company during the life of the contract.

In its brief the plaintiff in error seeks to divide the contract into two parts: first, the contract gives the exclusive right of sale to the Schmidt company for a period of three months; second, it provides that “you shall be entitled to your commission if the property is sold or exchanged by you, or the undersigned, or any other person at any price acceptable to the undersigned, during the existence of this contract. ’ ’ If this element of divisibility were present it would not aid the plaintiff company, for the reason that under the language of the agreement the plaintiff company would only be entitled to commission if the property was sold or exchanged during the existence of this contract.

The case here under consideration is unlike the case of Durrell v. Reynolds, 24 C. C. (N. S.), 361, 27 C. D., 117. In the Reynolds case the brokers did procure a purchaser ready, able, and willing to take the property at the agreed price, notwithstanding an infirmity in the purchaser’s contract to purchase. In the instant case had the Schmidt company secured a purchaser ready, willing and able to take the property during the life of the contract it would have been entitled to the commission, notwithstanding the contract may not have been formally executed until after the expiration of the contract.

The only claim by the plaintiff company, as disclosed by the record, is that it, through its agent, did show the property to a man who after the expiration of the contract did purchase the property at a different price from that named during the life of the contract. It does not claim it secured a purchaser at that time, or during the life of the contract, ready, willing and able to take the pyoperty, or otherwise. In fact it is a question of disputed evidence as to whether or not the Schmidt company ever showed the property to Robertson, or ever interested him in the property. But considering that the company may have through an agent shown the property to Robertson,- Jr., it did not effect the sale made long after the expiration of the company’s contract and at a different price. If the record disclosed that the sale was in fact entered into before the expiration of the contract, and that the sale was fraudulently covered up, for the purpose of avoiding payment of the commission, it would not defeat the right to the commission, but no such claim is here made by the company and nothing is in the record to show such a situation.

Our conclusion is that the judgment of the trial court is correct in finding that the plaintiff company was not entitled to recover, and in entering judgment for the defendant Mall, and that judgment is therefore affirmed.

Judgment affirmed.

Ross, P. J., and Matthews, J., concur.  