6913

#### GOLDSMITH v. COXE.

Contract — Broker. — Where two tenants in common make a real estate broker their agent with exclusive right to sell the common property, and the other tenants deal with him as their agent and recognize his right to commissions in case of sale and permit him to expend considerable labor and time in the effort to sell the property on the faith of the agency, and finally all of them, without revoking his agency and while he was trying to sell, sell the property to one with whom he had' been negotiating, the broker is entitled to his commissions.

Before Hydrick, J., Greenville, November, 1907.

Reversed.

Action 'by Wrn. Goldsmith, Jr., against Joseph C. Coxe, Franklin Coxe, Jr., Eleanor C. Gibson, Tench C. Coxe, and Jno. C. Mills, as trustee of S. A. Croft. From order granting nonsuit, plaintiff appeals.

*Mr. Jos. A.*McCullough, for appelant,

cites: *As to right to commissions:*19 Cyc., 264; 23 Ency., 900, 913, 914; 22 Ency., 89; 80 Pac., 808; 41 S. E., 42; 44 S. C., 248; 4 Ency., 979, 980; 40 Atl., 462: 13 S. W., 420; 5 Current E.. 450; 110 N. W., 65; 80 S. W., 687. *Defendants cannot defeat right to commissions by making sale themselves:*41 S. E., 42; 13 S. W., 419; 14 S. W., 256; 51 N. Y., 124: 32 Atl., 363; 36 Conn., 136; 42 Atl., 667; 4 Ency., 977; 44 L. R. A., 321; 78 N. W., 498; 17 S. W., 45; 88 S. W., 157, 963; 20 N. W., 10.

*Messrs. Sirrme &*Charles, contra.

No citations.

May 18, 1908.

The opinion of the Court was delivered by

Mr. Justice Woods.

The defendants in December, 1906, sold a lot of land on North Main street, in the city of Greenville, which they owned as tenants in common, for the *342sum of twenty thousand dollars. After the sale, the -plaintiff, a real estate broker, brought this action- to- re-cover one thousand dollars -commissions, alleged to be due him on the sale. -The facts alleged in the complaint on- -which the action depends, shortly stated, are these: The placing of the property by the defendants in- the -bands of the plaintiff, as their agent, to negotiate a sale for them on agreement to pay him a commission of five per cent, in case he should succeed; the sale of the -property -by the defendants for twenty thousand dollars to a purchaser procured by the efforts of the plaintiff; the expenditure by the plaintiff -of time -and labor in the employment so undertaken by him for the defendants, and service to the defendants in the time and labor so expended, reasonably worth five per -cent, of the sum- for which the land was sold.

The appeal is from- an order of nonsuit, made on the ground that the evidence failed to show the plaintiff had any contract with defendants for the -exclusive right to- sell the property, or for payment to- h-i-ml of a -commission' on any sale made by the defendants them-selves.

The evidence is- largely documentary. It -begins with the appointment -by the defendants, Franklin Ooaoe, Jr., Joseph C. C'oxe, and Eleanor Minnegerode, now Eleanor Gibson-, of Julius Smith- as their agent for the management of this and other property. This appointment was in these words : “We the three heirs- of Tench- C. Coxe (deceased), wish- and ask Mr. Julius. Smith, of Greenville, S. C., to- manage and- take charge of our property in- Greenville, S'. C., and to h-av-e full and undivided control of the sarnie; to sell and rent subject to heirs’ approval -and manage to the best of -his -ability for t'he benefit of said heirs, and also to get in his- possession all moneys collected since (Mr. Donaldson, T. Q.) has had charge of same derived from rents of said property.”

Smith accepted the appointment, and thus made it a binding agreement.

When the -contract wa-s- -made, the parties who- signed it were supposed to be the exclusive owners of th-e property, *343but it -was subsequently discovered that Francis S. Coxe, as executor of Frank Coxe, deceased, had or controlled a one-third interest in the property.

Olearly the “full and' undivided control" was to enable Smith to control the property exclusively as agent or broker for the purpose of selling and renting, subject to the approval of the heirs of Tench C. Coxe. The plaintiff, Goldsmith, at this time, or soon afterwards, was a partner of Smith, but-it does not affirmatively appear that he had any interest as a partner in the contract at its inception. Smith managed the property, and made efforts to sell it under the agreement until his death, on 12th July, 1903.

In answer to Goldsmith’s letter, giving notice of Smith’s death, and expressing his desire to *continue*to look after the property for the owners, Joseph C. Coxe, Franklin Coxe, Jr., and Francis S. Coxe, executor of Frank Coxe, deceased, wrote to Goldsmith agreeing to *continue*himi as their agent in the place of Smith; Joseph C. Coxe and Franklin Coxe, Jr., being parties to the contract with Smith, and, therefore, knowing its terms, their letters cannot be construed to mean anything less than a substitution of Goldsmith for Smith, and an agreement that Goldsmith should have the same exclusive control, as their broker or agent for the management and sale of the property, subject to their approval. Thereafter, voluminous correspondence was carried on between Goldsmith and Franklin Coxe, Jr., and Joseph C. Coxe, in relation to the disposition of the property. This correspondence and Goldsmith’s evidence show he was making efforts to- sell all the property, yet at no time was thepe any attempt made by Joseph C. Coxe, or Franklin Coxe, Jr., to' put an end to his exclusive agency for the management and sale; and the contract for such exclusive agency was in full force When the sale was actually made. As to these two parties, therefore, it seems to us clear that the Circuit Judge was in error in holding there was noi proof of a contract with plaintiff of exclusive agency for the sale of the property.

*344As to the other parties in interest, Mrs. Gibson and Francis S. Coxe, executor, we think there is no evidence of exclusive agency for sale conferred on Goldsmith. It is true Francis S. Coxe, executor, in answer to Goldsmith’s letter, wrote to him asking him to continue to look after the management and disposition of the property as Smith had done, but there is nothing to show that Francis S. Coxe, executor, knew that Smith had a contract of exclusive agency for the sale. Mrs. Gibson also wrote to Goldsmith, acknowledging receipt of a letter from him, saying she had been trying to get some one to act in her place “as regards decisions about the Tench Coxe property,” and telling him to apply to Tench Coxe and Francis Coxe if he received an advantageous offer to purchase. But there is no evidence from. Mrs. Gibson’s correspondence, or otherwise, that she ever agreed that Goldsmith should succeed to the rights she had conferred on Smith, and so have exclusive charge of the property, as her broker, for its sale.

There being no evidence of exclusive agency for sale con'ferred by Francis S. Coxe, executor, or Mrs. Gibson, it becomes necessary to. inquire whether there was any evidence that these parties, along with Franklin Coxe, Jr., and Joseph G. Coxe, employed Goldsmith as their broker, to sell the property; and whether he was instrumental in bringing about the negotiations with the purchaser, which resulted in a sale 'by the parties themselves. These questions must be answered in the affirmative. As we have seen, all the parties, except Mrs. Gibson, expressly agreed to and recognized his agency. There is evidence that all of them, including Mrs. Gibson, left the property to be managed by him, received accountings from him; allowed him to collect rents, pay faxes and in all respects have general charge of it.

These transactions continued after Mr. Beaty became the representative of Mrs. Gibson; and Goldsmith testified, when he was corresponding with the other parties about prices and about his efforts to effect a sale, he conferred in person with Mr. Beaty, acting for Mrs. Gibson, with respect *345to prices. What is still more significant, he actually negotiated a sale of a part oif the property, and received from all of the parties concerned commissions thereon.

On the 6th March, 1906, when plaintiff wrote to Francis S. Coxe, Joseph C. Coxe and Franklin Coxe, Jr., stating an offer he had for the property, he said, “of course my commissions will come out of the amount the place sells for.” In their replies declining the offer and stating a higher price, there was no demur to the olaim of commissions, in case of sale. Again on 23d November, 1903, Francis S. Ooxe, in giving the plaintiff a price on the property, recognized his right to five per cent, commissions. All the parties in interest authorized the plaintiff to give an option on the property-in their -behalf for sixty days. After the expiration of this option, the plaintiff continued' his efforts to sell the property to W. W. Burgess and others, who subsequently purchased for a hotel site. The testimony of Burgess was to -the effect that there was -an intermission in -the negotiations, and when at length he saw a good prospect of doing something definite about the purchase of the property for a hotel site, he went to Tench C. Coxe, who, it seemls-, bad come in some way to represent the one-third interest formerly represented by-Francis C. 'Coxe, instead of to Goldsmith, to- avoid the delay of correspondence in- agreeing with all the parties through Goldsmith. This- interview with Tench C. Coxe led to -the sale of the property to B-urgess and others for twenty thousand dollars.

Even after this interview, Goldsmith- wrote to the parties asking permission to make -a sale at a price named in his letter, and' received a reply from- Tench C. Ooxe, as- trustee, saying his- brother had given an option -on the property, and asking a week o-r ten days -to give a definite answer to the proposition made through Goldsmith.

Viewing the whole correspondence in the light of the parol testimony, the evidence warrants -these inferences: That Goldsmith was made the agent- for two of the parties with the exclusive right to sell, and that the others through*346out dealt with him as their agent, recognized his right to commissions, allowed him to expend- considerable labor and time in the effort to sell the property on the faith of his agency; and finally, all of them, without revoking his agency and while be -was trying to sell, sold the property to a party with whom he had been negotiating. These inferences may, of course, fade away before the evidence for the defense, but on 'the motion for nonsuit, we are to consider whether they are sufficient to sustain a verdict for commissions -on the sale.

As to the right under the evidence to recover from! Franklin Coxe, Jr., and Joseph C. C'oxe, commissions on their share of the purchase money, there can be no doubt, for, as we have shown, the plaintiff had the exclusive control of the property as far as they could confer it for the purpose of sale; this control had never been withdrawn and the plaintiff was making actual efforts to sell when the owners sold.

The question is more difficult as to the other parties. In *Mordecai*v. *Jacobi,*12 Rich., 547, slaves were placed with a broker to sell for a commission of two and one-half per cent., and afterwards the owner, without notice to the broker, effected a sale himself. It was held the broker was not entitled to commissions. The rule in that case is recognized and applied in *McClave*v. *Paine,*49 N. Y., 561, 10 Am. Rep, 431, and many other cases. But *Mordecai*v. *Jacobi*is not controlling in. -this case, because there no negotiation between the purchaser and the broker was shown, and the broker had performed no service whatever looking towards a sale.

There are no cases in this State bearing on the questions here presented. But the rule of reason, which seems to be supported by practically all the authorities on the subject, is that the broker is entitled to his commissions, if during the continuance of his agency he is the efficient or procuring cause of the sale, though the actual agreement for the sale is made by the owner without the aid of the broker; and the broker will be regarded the procuring- cause if his *347intervention i® -the foundation upon which' the negotiation resulting in the sale is begun. *Hoadley*v. *Savings Bank,*71 Conn., 599, 44 L. R. A., 336, note; *Scott*v. *Patterson*(Ark), 13 S. W., 419; *Reid*v. *McNerny*(Iowa), 103 N. W., 1001; *Salle*v. *McMurry*(Mo.), 88 S. W., 157; *State*v. *Wescoat*(N. J.), 49 Atl., 462; *Smith*v. *Truitt*(Mo.), 80 S. W., 686; 23 A. & E. Enc., 910; 93 Am. Dec., note, 176.

The evidence here wa9, that the plaintiff advertised' the property in the city of Greenville, where the purchaser resided; that he brought the property to the attention of the president of the Board of Trade, and negotiated' with Burgess and others as the officers of that body for the sale; that there was a lull in the negotiations, and a few months afterwards the sale was made by the owners to the same persons acting for, or, at the instance of, the Board of Trade. This evidence was certainly sufficient to send the case to the jury on the issue as to whether the plaintiff was the efficient or procuring cause of the sale.

We express no opinion as to the rate of commission for the sale, as that matter was not reached and, therefore, was not passed on by the Circuit Court.

The judgment of this Court is that the judgment of the Circuit 'Court be reversed, and the cause remanded to thal Court for a new trial.