
    SINGER CONSTRUCTION COMPANY vs. FELIX V. GOLDSBOROUGH.
    
      Corporate Officer — Authority—Contract With Broker — Offer- and Acceptance — Consideration—Bight to Commissions.
    
    One cannot complain of the exclusion of a question if the witness subsequently answers the inquiry. p. 631
    Where an agreement is made as a part of a corporation’s daily business and in reference to a matter which is a common incident of its current corporate activities, by an officer whom it has allowed to act publicly in tbat capacity, tbe officer bears tbe same legal relation to the company as an executive committee, a general manager, or a general agent, and bis acts will bind tbe company to an intro- vires contract made in its behalf witb a third party. pp. 632, 633
    An authorized agreement made by a corporate officer involving tbe employment of a broker to sell corporate property is not affected by tbe fact tbat tbe subsidiary details in carrying out tbe main object of such employment, in case tbe broker procures a purchaser, are left to a subordinate. p. 633
    In an action by a broker for commissions on a sale of land belonging to defendant corporation, held, tbat tbe evidence was sufficient to authorize a finding tbat tbe treasurer of tbe corporation was authorized to employ tbe broker. pp. 633, 634
    Tbe Court of Appeals has nothing to do witb an issue of fact which was raised below, submitted for a finding, and decided by tbe verdict, provided there were any legally sufficient facts justifying tbe submission of tbe ease to tbe jury, or to tbe court sitting as a jury. p. 634
    After a broker employed by tbe owner of land has procured a purchaser, who is accepted by tbe owner, tbe latter cannot repudiate its contract without responding in damages to tbe broker, whose rights are not affected by tbe payment of commissions to another broker who produces a second buyer. p. 636
    Where a broker makes an offer to tbe owner of property to try to procure a purchaser on terms to be fixed by tbe owner, if tbe owner will give him a named period within which to do so, and tbe owner names bis terms and makes bis counter promise to let tbe broker have tbe period named within which to procure a purchaser, tbe consideration for tbe broker’s promise is tbe promise of tbe owner to give tbe broker tbe designated time in which to -find a purchaser, and tbe further promise to pay commissions on condition tbat a buyer be procured as a result of tbe broker’s promised undertaking. pp. 636, 637
    When tbe offer of a promise by a broker to try to find a purchaser for property within a named time is accepted by tbe owner’s counter promise to allow him such time for tbe purpose, tbe owner naming tbe terms of sale, they are both thereafter bound, although commissions will not be earned by the broker until the fulfilment of his obligation under the contract has actually resulted in the procurement of a purchaser able, ready, and willing to comply with the prescribed terms, p. 637
    When a broker employed by the owner finds a purchaser within a specified time who is able, willing, and ready to buy upon the specified terms, the broker’s powers are exhausted, no authority having been conferred on him to execute a contract of sale for the owner with the purchaser. p. '637
    Where a broker employed by the owner procures a purchaser who offers to execute a contract upon the terms prescribed by the owner and acceptable to the latter, while the owner may refuse to enter into a contract of sale with the proposed purchaser, without incurring any liability to him, he does not have such right of refusal as regards-the broker. p. 638
    Where the agent has done all that he undertook to do, and procured a buyer as contemplated, he may not be deprived of his right to remuneration by the circumstance that the sale has fallen through by the unwarranted refusal of the principal to enter into a contract to carry out the authorized sale according to its prescribed terms. . p. 638
    The principal’s refusal to complete the contract is a waiver of subsequent conditions whose fulfilment is rendered impossible by the principal’s action. p. 638
    On a demurrer by the defendant to the evidence, the court must, for the purposes of its ruling, accept the hypothesis that the testimony supporting plaintiff’s theory is true. id. 639
    
      Decided April 7th, 1925.
    
    Appeal from, the Baltimore City Gourt (Duffy, L).
    Action by Felix Y. Goldisboroiugh against, the Singer Construction Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    The cause was, argued before Bond, Cl J., Pattison, Urner., Adkins, Offutt, Digges, PTbke, and Walsh, JJ.
    
      Waiter H. Buck, for the appellant.
    
      Albert S. J. Owens and Philander B. Briscoe, with, whom were Briscoe, Jones & Martin on the brief, for the appellee.
   Parke, J.,

delivered ¡the opinion of the Court.

Felix V. Goldsborough, a licensed real estate agent, appellee, recovered a judgment against The Singer Construction Company, a corporation, the appellant, in the sum of $2,137.50, as commissions for procuring a purchaser for appellant’s thirty-six properties at Westport for $2,250 each, malting’ the total price $81,000.- The caise was tried before the court on the common counts, and there are but two -exceptions on the record. The first .is to -a ruling, excluding, on crossHexamiaiation, -a qu'estion .asking the .appellee if he had “closed the deal” a.t a certain time and place. This exception was not pressed on appeal, but it could furnish no, ground for reversal, because the witness ¡subsequently -answered the inquiry by telling where the deal, in 'his opinion, was closed. If a party introduce at a later point in a witness’s examination testimony which had been before hal'd inadmissible, he cannot complain of -the adverse ruling, as ultimately no injury resulted from the exclusion. It is a legal commonplace that -an exception -cannot be sustained unless it -combines both error and injury.

The -slecond exception is- to the action of the court in overruling .appellant’s special exception to the appellee’s first prayer, and in granting- appellee’s first prayer -and in refusing’ the appellant’s third, fourth -andl fifth prayers In granting the appellee’s first prayer' there was no reversible error, unless the appellant's -theory that there was no legally -sufficient evidence to- entitle the appellee toi recover be sound. This theory was presented by the special exception of the appellant, 'and by its third, fourth and fifth prayers. The special exception to appellee’s first prayer iis that there was no evidence in the case to show, or tending to -show, the terms of sale that were authorized by the -appellant. ■ The three rejected prayers of the appellant 'are demurrers to the evideuce. The point made by the 'Special exception is embraced in the questions raised by the rejected prayers, and, therefore, 'the special exception ¡and .the rejected -prayers will not require separate consideration,.

The appellant’® theory of a failure of proof rests upon the propositions, first, that the alleged employment of the appellee was unatifhorized by the appellant; .and, second, that there was no valid! agreement between the buyer and the appellant, or its authorized ¡agent, for thei purchase -and sale of the leasehold properties.

1. The Singer Gon'struetion Gompany is .a body corporate, with, its place of business in Baltimore. It was formed for the purpose of taking title to fhlei real and leasehold property of a certain,Erank D. Singer, Jr., and of liquidating his affairs by selling; the property thus acquired. It opened an office, and, at the time of - the transaction in question, its affairs were in eharg;a of Richard B. Tippett, president, John M. Requhardt, treasurer, .and Harry E. S'ilverwood, secretary, and its usual and routine business was selling its holdings of real and leasehold property. The sale® were made without submission to a board of directors, and the testimony unquestionably tended to establish that the three named officers of the company Ware in charge, and that, before- Mr. Requhardt left for Europe, either he or Mr. Tippett fixed the prices at which the properties were sold and executed -the contracts of sale. It is¡ afeo clear- that there was sufficient evidence to preve that it was in the regular course of -the company’s business; and within his authority ais one of its managing -officers, for Mr. Requhardt, its -treasurer, to. begin, conduct and conclude the sale of properties, including, the fixing of the price of sale, and the employment of real estate brokers in these transactions-.

According! to the testimony on the part of the appellee, the agreement in dispute was made with its. officer, Mr. Requhardt, as a part of ¡the appellant’® daily conduct of its business and in reference to a matter which wasi a common incident of the exercise of its current corporate trade aetivities-, and with am officer ■whom, it had allowed to act publicly in that capacity. Under these circumstances such an officer bears the same legal relation to the company ais an executive committee, ,a general manager or a general agent, and his acts will bind the company to 'an mtra vires contract made in its behalf with a third piarty. Owners' Realty Co. v. Cook, 123 Md. 1, 2; Lester v. Allen, 31 Md. 543, 547; Northern Central Ry. Co. v. Bastian, 15 Md. 494, 501; Carrington v. Turner, 101 Md. 437, 442, 443; Buchwald Co. v. Hurst, 111 Md. 572, 576, 580; Md. Trust Co. v. Mechanics’ Bank, 102 Md. 608, 634, 635; Himmel v. Merchants T. & S. Co., 134 Md. 38, 41; Sun Printing and Publishing Assn. v. Moore, 183 U. S. 642, 649, 653; Martin v. Webb, 110 U. S. 7; Henderson v. Raymond Syndicate, 183 Mass. 443, 446; Melledge v. Boston Iron Co., 5 Cush. (Maas.) 158, 175, 179; Topping v. Bickford, 4 Allen (Mass.), 120; Sherman v. Fitch, 98 Mass. 59, 64; Chestnut Street etc. Co. v. Record Pub. Co., 227 Pa. St. 235, 240; Phillip v. Campbell, 43 N. Y. 271, 272; Chambers v. Lancaster, 160 N. Y. 342, 349; Hess v. Sloane, 66 N. Y. App. Div. 522, 526, 173 N. Y. 616; Chilcott v. Washington State Colonization Co., 45 Wash. 148, 152; Curtis L. & L. Co. v. Interior L. Co., 137 Wis. 341, 351, 352; Louisville etc. Ry. Co. v. Louisville Trust Co., 174 U. S. 552, 573, 576.

If the appellee’s version of this agreement be accepted as correct, the terms of his employment were fixed with Mr. Eequhaidt, -and this agreement wlould be unaffected by the fact that Mr. Eequhardt, because of his approaching trip to Europe, left for the -attention of Mr. -Silverwood, the secretary of the company, the subsidiary details in carrying out the main object of the employment of -the appellee, in the event he should procure a purchaser, and present 'him for the consummation of a sale between the buyer and the oomiapny. The exigencies of businessi may, from time to time, require a subordinate agent to perform a ministerial act in the course of the fulfilment of the authorized agreement, of his superior officer*, if noi special discretion or shill is required. Story on, Agency, sea 20; De Busche v. Alt, 8 Ch. D. 286.

2. It follows from, what we have ¡said that there was enough evidence to. find that the treasurer was authorized to employ a real estate broker for hi® company to. sell its property. It is quite true that the employment of the appellee was denied, but this Clourt has nothing bo do with this issue of fact, which was raised below, submitted for a finding and decided by the verdict. It is our restricted province to consider* whether .there were .any legally sufficient facts justifying the submission of ‘the case to. the court, sitting as a jury.

The appellee offered evidence tending to show that he was present in the office of the .appellant on Thursday, May 31st, 1923, when a sale of .thirty-six leasehold lots, with improvements, at Westport, the property of 'the appellant, was rescinded by agreement. The parties present, who acted for the' appellant, were John M. Eequhardt, -its treasurer, and Henry E. Silverwood, its secretary. As they walked out of the office, appellee followed, and he testified that the following conversation took place in tire .corridor. The .appellee said: “John Eequhardt, give, me those properties for about twenty-four hours, I think I can dispose of them. He said, ‘All right, go ahead and sell them — $2,250.’ I said, ‘All right, subject to. the ground rent’ and mortgage liens.

It was then about half-past four o’clock in the afternoton, and .appellee went to' work to. malee the sale. He secured in the morning of the next day a purchaser at the given' price of $2,250 for every property, if the buyer could get necessary financial help.; and he .also, obtained an offer of $2,200 a lot before one ©’clock of the same afternoon, when lie 'encountered Mr. Eequhardt o-n the .street. The appellee informed Mr. Eequhardt that he had the two prospective buyers, but Mr. Eequhardt declined to discuss, any business matters, a® he was leaving for Europe the next day, and referred him to Mr. Silverwood, stating “You talk to Mr. Silverwood, take up any matter with him, and if you have .any dealings about these buildings talk with Mr. Silverwood, and he will take care of you, and take care of the transaction,” and ’the appellee left, saying “All right.”

At four o’clock of the same afternoon appellee ¡obtained an offer of $2,250 for every one of hhiei leasehold lots subject to the ground rent and mortgage on every lot. The sale aggregated $81,000, and the purchaser was ready, willing 'and .able to dose the deal. The appellee called by telephone, but found Mr. Silverwood out. 'The appellee then left his office and met 'Silverwood on Lexington 'Street about quarter past four, and told him* that the ¡sale hiad! been made to Meyer Abramson. The reply wa© “Weil, I am not particular about doing business with Mr. Abramiston, but still that doesn’t make ¡any difference, I will dose the deal with him.” By common consent an appointment wasi made to meet .at the office of the appellant on the following morning for the execution, of the necessary paper®. The appellee and the purchaser kept the engagement and informed Mr. Silver-wood -that they were there to execute the contract of purchase and to make thel deposit. According to the record, this conversation took place between Silverwood 'and the appellee: “Mr. Silverwlood said, ‘You can’t dose thiei deal; I gatve an option on these house®! last night at six o’clock to hold good until noon today for twenty-three hundred dollars apiece, .and you cau’t buy them, for three thousand dollars.’ ‘Why,’ I said, ‘I have 'already bought them, my man here, the Louses belong to him, I .sold them to him, you agreed to put the deal through.’ He said, ‘It ¡doesn’t make any difference; it couldn’t be sold for three thousand dollar®, but if you come back today .at noon 'and my man hasn’t taken them, you can have them.’ Weill, I wias more or less put out and angered. I left there 'and came back at noon time, or three or four minute® of noon, and Mr. 'Silverwood ©aid, ‘They are gone; I ami ¡dosing -the ¡deal for -them.’ I left there without making; .any other comment.”

The ¡appellee offered other testimony to establish that, after this interview, he and the purchaser saw the president of foe company .in an effort to get "an execution of a contract in conformity with the terms of the sale; and- that-, although the purchaser' was able, ready 'and willing to coonpl'elte a sal© within the time given, according to. the terms specified, the appellant refused. 'The appellant miad© a sal© of the same properties to another party at the increased price of $2,300 a lot, on Saturday, as .a result of a negotiation which was begun by Mr. Silverwood between five and six o’clock on the previous Friday afternoon, or about 'an hour after the meeting of Mr. Silverwood and the -appellee on Lexington Street, where, according to the appellee, the purchaser procured by him was accepted .and it was arranged, alsi a matter of convenience, that the sale mad© by the appellee should b© dosed the next morning. It was then too lata for the seller to repudiate .its contract without responding -in damages' to the broker, whose rights are not affected by the payment of commissions -to another broker producing the second buyer.

If these recited facts are true, the offer of the broker to the owner, in substance 'and effect, was that if the owner would promise to give the broker’ the leasehold property to sell during a period of twenty-four hours, -the broker would employ his special skill -and experience ais a real estate broker in an attempt to procure foe owner a purchaser within foe period .allowed, on terms toi be fixed by foe owner, as it was foe broker’s belief that it was within his ability so to find a, buyer, which would entitle him to bies paid; but, if he failed, he should not receive any compensation. What foe broker offered was not a stipulation to make a sale, but merely an offer ¡of his promise to -employ .a certain 'definite time in foe performance ¡of some earlier act in foe effort to find a buyer. The owner, in consideration of this offer by the broker to do' a future act which otherwise he was not legally bound to 'do, and which was a detriment to' him andi a benefit to the owner, fixed the price and the terms upon Which it would be willing to sell during foe period named, and made its oonnten-promiise a® requested, to -let foe broker have foe time mentioned within which to secure a buyer upon the terms specified, provided that compensatbion be •conditioned on his prodiicinig the buyer. The consideration for the promise of the broker was (a) the (promise of the owner to give the broker the designated time in which to work to find his purchaser, ianid (b) the further ,and separate promise to pay commissions on condition that a buyer be ■procured as a result of the broker’s promised underbaking.

When the offer of thie promise by the broker wasi accepted by the owner’s counter-promise, the contract was then formed and the broker and the owner were thereafter both bound by any of the terms of the contract, notwithstanding the broker’s commission would not be earned! until thie fulfilment of his obligation under the contract had actually resulted in ■the procurement of a purchaser, who was able, ready and willing to' comply with the terms prescribed. Langdell's Summary of Law of Contracts, secs. 11, 14, 183, 184. The broker -beg|an at once the perfoimlanoa of his promise by employing bis ¡art .as broker .to get a buyer, while the owner discharged its obligation by affording him the: allotted period. 1 Williston on Contracts, secs. 60 a, 61, 65; Offard v. Davies, 12 C. B. (N. S.) 748; Martin v. Meles, 179 Mass. 114; 2 Mechem on Agency (2nd Ed.), secs. 2445, 2451, 2453, 2454. Sea Sir Frederick Pollock in 28 Law Quarterly Review, p. 100; Manchester Ship Canal Co. v. Manchester Race Course Co. (1901), 2 Ch. Div. 37, 51.

When the agent found and presented to the owner, within the time ¡specified, a purchaser who was able, willing and ready to¡ buy upon the terms specified, the agent had exhausted his power under 'the contract, as no authority had been conferred upon him to execute a contract of sale for the owner with the purchaser. Brown v. Hogan, 138 Md. 257, 266, 269; Karupkat v. Zoph, 140 Md. 242, 245, 246. The buyer, 'however, offered to execute the contract upon the terms prescribed by the appellant and acceptable to it, and a binding* contract of sale wais n'ot executed for the sole reason that the appellant refused ¡on the igrourad that it wasi not bound by any contractual relation with the appellee. As has been seen, this was an unwarranted position to take. It is. quite truie that tkei sedlea* wag; not bound by 'any oontraiot with the buyer, and could refuse to' enter inte» a contract of sale with Mm without incurring .any liability to the buyer. With reference to the broker, however, the seller’s statu® was. different, and, although it had the power toi decline to' complete the sale to a pundhasea» procured by the broker, yet, as to the broker, it did not have the legal right toi refuse except at its pieril of liability. 1 Mechem on Agency, sec. 568. The contention of the appellant that the broker' wasi not entitled to recover because there Wasi no actual contract of sale entered into between it and the buyer*, who was procured by the broker, is unsound, because it ignores the proof that completion of the sale by a contract in .accordance, with the specified' terms was wholly prevented by the default and refusal of the appelant.

Where the lagent hasi dione all he undertook te» do, and procured a buyer as contemplated, he may not. be deprived of his right toi remuneration by the circumstance that, the sale has falen through by the unwarranted refusal of the principal to enter into a contract to carry out the -authorized sale-according to its prescribed term®. The principal’» arbitrary declination to complete the contract is a waiver of subsequent conditions whose fulfilment is -made impossible by the principal’® .action. Under such circumstance®, the broker is entitled -toi recover compensation for his services.. Even if the offer of the seller contemplated calling for -an .acceptance by -an act (i. e., the procuring of a purchaser) sioi that a contract did- not arise until the act wa® done, the appellant Would be liable 'as the appellee, before revocation of his employment toi sell, had furnished the act requested (i. e., the procuring .of a purchaser) upon which a promise to pay commissions arose, and' it was solely through, the refusal of the •appellee that the sale was not consummated. Whether viewed -as a bilateral or ,a unilateral contract, the case was for the jury on the hypothesis that the testimony -supporting the theory of the appellee was -true, and, on a demurrer to the evidence, it is this hypothesis -which the court must •accept for -the purposes of its ruling. Richards v. Jackson, 31 Md 251, 253; Schwartz v. Yearly, 31 Md. 270, 278; Glenn v. Davidson, 37 Md. 365, 367; Riggs v. Turnbull, 105 Md. 135, 150, 151; Garrington v. Graves, 121 Md. 567, 572; Coppage v. Howard, 127 Md. 512, 521, 525; Stokes v. Wolf, 137 Md. 393, 408, 411; Kock v. Emmerling, 22 How. 69; McGarvick v. Woodlief, 20 How. 229; North Ave. Casino Co. v. Furguson, 130 Md. 376, 380, 381; 2 Williston on Contracts, sec. 1030; Crowe v. Trickey, 204 U. S. 228, 238, 240; 2 Mechem on Agency (2nd Ed.), secs. 2447, 2453, 2455, 2439, 2461; Rowan v. Hull, 55 W. Va. 885, and annotations in 2 Am. Cas. pp. 884, 888, and, in 43 L. R. A. pp. 593, 599; 23 Am. & Eng. Ency., 919.

For the reasons 'assigned, the Oourt does not find reversible error in the bills of exceptions tjaken, and .the judgment must be affirmed.

Judgment affirmed, with costs to the appellee.  