#### SHINN v. EVANS.*

Real-Estate Brokers; Direction oe Verdict; Evidence; Presumptions.

1. Where a real-estate broker authorized to make a sale finds a purchaser willing and able to buy on the authorized terms, and the owner makes the sale himself, or the consummation of the sale is prevented by his refusal or fault, the broker is entitled to his compensation. (Following *Bryan*v. *Abert,*3 App. D. C. 180; and *Dotson*v. *Milliken,*27 App. D. C. 500, s. c. 209 U. S. 237, 52 L. ed. 768, 28 Sup. Ct. Rep. 489.)

*3052. The trial court is never justified in directing a verdict except in cases where, conceding the truthfulness of the witnesses, and giving full effect to every legitimate inference that may be deduced from their testimony, it is nevertheless plain that the party has not made out a case sufficient in law to entitle him to a verdict. (Following *Adams*v. *Washington & G. R. Co.*9 App. D. C. 26; and *Capital Traction Co.*v. *Brown,*29 App. D. C. 473, 12 L.R.A. (N.S.) 831, 10 A. & E. Ann. Cas. 813.

3. Hi an action by a real estate broker against his principal to recover a commission on a sale to a purchaser found by the plaintiff, and who was ready, able, and willing to buy for the price and on the terms fixed by the owner, a doubt raised by the evidence as to whether another broker, through whom the sale was consummated for a less price, was the agent of the purchaser, and not of the seller, will be resolved in favor of the plaintiff.

4. Where in an action by a real estate broker against his principals to recover a commission on a sale of land, it appears that the plaintiff was denied by the defendants the exclusive right to sell; that while he procured to the knowledge of the defendants a person willing and able to buy for the price and upon the terms fixed, another broker actually effected the sale to the same person at a less price; but it does not appear that the defendants had, in the exercise of their reserved right, actually employed another broker and it may be inferred from the evidence that the broker through whom the sale was consummated acted as the agent of the purchaser,—the trial court errs in directing a verdict for the defendants. (Distinguishing *Daniel*v. *Columbia Heights Land Co.*9 App. D. C. 483.)

5. Where a sale of land to a purchaser found by one real estate broker is consummated by another broker, who makes more satisfactory terms with the owners, and assists in raising part of the purchase price of the land, the owners cannot escape the liability for a commission to the one who found the purchaser, by simply making the sale on different terms.

No. 2283.

Submitted May 3, 1911.

Decided May 24, 1911.

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia, on a verdict directed by the court, in an action by a real estate broker to recover a commission on an alleged sale of land.

*Reversed.*

*306The Court in the opinion stated the facts as follows:

This action was brought by Robert C. Shinn against the Evans brothers [John-A. Evans and A. Ward Evans], to recover commissions on an alleged sale of a square in the city of Washington.

At the close of the plaintiff’s evidence, the court directed a verdict for defendants, on their motion, and from the judgment thereon plaintiff has appealed. Plaintiff testified substantially as follows: In August, 1909, defendants authorized him to sell the land for $35,000, and promised a commission in ease of sale. He set about finding a purchaser, and interviewed several persons. Within two days he saw one Forsberg, who offered $25,000. Told defendants that Forsberg' was interested. They had no objection to him; he was then a tenant of theirs. August 25th, he began dealing with Forsberg. Told defendants that Forsberg had not all cash, and they agreed to take a mortgage for part, if he would buy. Thought Forsberg would pay $30,000, of which $7,500 would be cash. This was September 18th. Told them commission would be 3 per cent, and they calculated the same. They agreed to take $32,500, with $7,500 cash, or $30,000 with’ $10,000’ cash. Told them he knew he could close the deal. Forsberg wanted to accept the $30,000 proposition in order to save $2,-500, and asked a few days to get the money. Told defendants Forsberg would take the property. Wanted them to give him exclusive right of sale, or an option for several days. Said they would not give exclusive right of sale, but would pay the commission if he sold to Forsberg. Told them Forsberg had agreed to the $30,000 offer, and wanted two days to get his money to pay the cash part. Told them the names of several proposed purchasers, and that if sold to one of them he would claim the commission. They said Forsberg is your client, and if you sell him will pay the commission. Went to New York for two days and from there wrote Forsberg, who telegraphed his intention to buy, asking witness to return at the earliest *307moment. Upon Ms return two days later, called defendants on phone and told them he was ready to close the deal with Forsberg. Defendants replied they had sold the property that afternoon at 4 o’clock to an out-of-town party, whose name they did not know. Said one Gadsby had made the sale. Learning that Forsberg was the purchaser, demanded commissions which, after a day or two, they declined to pay. Defendants subsequently admitted that they knew Forsberg was the purchaser. The customary broker’s commission is 3 per cent. Cross-examined, he said that Forsberg had been a tenant of the property for two or three years. Forsberg asked him to negotiate the mortgage. Forsberg accepted the $30,000 proposition. Had never obtained an exclusive right to sell the property; was refused it. Did not see Forsberg after starting to New York, until the sale had been made. Did not make the sale, but Forsberg had agreed to the terms. Heard that the sale had been made for cash.

Forsberg testified that he closed the purchase with Gadsby. Had agreed with plaintiffs to take the property at $30,000,—• $10,000 cash and $20,000 secured by a mortgage on the property. Gadsby came to see him the day after he telegraphed plaintiff of his final acceptance. Said that he could get the property on reasonable terms. He came back and asked if I would give $27,500 cash, to which I agreed. We signed the contract the next day. Did not tell Gadsby of negotiations with plaintiff. Had wanted to buy the property for a long time, nothing plaintiff said induced the purchase. Was willing to buy on the terms proposed by him. It is possible I could have arranged for the $10,000 cash sale and $20,000 mortgage. Had about $7,000 when purchase was made and had to borrow part. Obtained $20,000 by mortgage on the property. $15,000 on first mortgage, and $5,000 by second mortgage to Gadsby. His reason for dealing with Gadsby was that he saved $2,500.

Defendants admitted the sale to Forsberg for $27,500, and plaintiff rested. The direction of the verdict followed.

*308*Mr. Eugene A. Jones*and *George Curtis Shirm*for the appellant.

*Mr. John C. Fay*and *Chas. W. Arth*for the appellees.

*

*Brokers—Right to*commissions.—Various phases of this subject are treated and the authorities presented in the following notes: Right of broker to commissions where sale fails because of inaccuracy of owner’s representations, *Dotson*v. *Milliken,*52 L. ed. 768; as to effect of inability of principal to complete sale on broker’s right to commission, *Brickenridge*v. *Claridge,*43 L.R.A. 603; as to what constitutes sufficient performance by real estate broker of his contract to find a purchaser or effect of exchange of his principal’s property, *Lunney*v. *Headley,*44 L.R.A. 593; broker’s right of commissions when sale is made by owner in ignorance of former’s instrumentality in procuring purchaser, *Quist*v. *Goodfellow,*8 L.R.A.(N.S.) 153; right of broker to commissions where he procures purchaser at price stated by his principal, but on slightly different terms in regard to cash or time of payment, and the owner refuses to consummate the sale, *Jepsen*v. *Marohn,*21 L.R.A. (N.S.) 935; right to commissions where two or more real estate brokers acting for the same person are instrumental in effecting a sale of property to a certain purchaser, *Hoodley*v. *Savings Bank,*43 L.R.A. 341; *Jennings*v. *Trummer,*23 L.R.A. (N.S.) 164; *Dalke*v. *Sivyer,*27 L.R.A.(N.S.) 195.

Mr. Chief Justice Shepard

delivered the opinion of the

Court:

It is well settled that where a broker authorized to make a sale finds a purchaser willing and able to buy on the authorized terms, and the owner makes the sale himself, or the consummation of the sale is prevented by his refusal or fault, the broker is entitled to his compensation. *Bryan*v. *Abert,*3 App. D. C. 180-187; *Dotson*v. *Milliken,*27 App. D. C. 500-514; 209 U. S. 237, 52 L. ed. 768, 28 Sup. Ct. Rep. 489.

Were it not for the reservation by the defendants of the right to sell through other agents, there could be no doubt of the plaintiff’s right to recover under the evidence submitted. Ry reason of an admitted denial of the exclusive right of sale to the plaintiff, it is contended that the case is governed by the rule established in the case of *Daniel*v. *Columbia Heights Land Co.*9 App. D. C. 483. In that ease it appears that plaintiff had been informed by the owner that the property was and had been in the hands of another agent for sale on the same terms stated to him; and that whichever agent should consummate it would receive the commission. Plaintiff assent-ted thereto. The property was well known to the party subsequently purchasing, who had wanted to buy it, but was not prepared to. He saw the signs of both agents on the lot. Plaintiff advertised the property, and saw the purchaser, offering it to him at the price fixed. Shortly after, the purchaser effected a loan that enabled him to buy, and employed a broker to effect the purchase. The broker saw plaintiff and the other agent, and finally closed with the latter. The owner made the deed, and paid the agent who closed the sale; having no knowledge that the plaintiff had anything to do with finding the purchaser or inducing him to buy. Holding that, under the conditions, plaintiff was not entitled to recover a commis*309sion of the owner, it was said that, by consenting to the arrangement, plaintiff incurred the risk of competition and the chance of the loss of commissions. That the obligation to pay the commission must be confined to the terms in which it was expressed; it was not to pay one who might find a purchaser, but the one who should produce him and consummate the sale. That the most plaintiff could claim was that he came near making the sale, and would have done so had not the purchaser finally closed with the other agent. That under the arrangement made, it was the duty of the owner to act impartially between the two agents, and not to collude with either; but he was not called upon to inquire into and adjudicate the conflicting claims of the agents; such a rule would be unreasonable, for under it an owner could safely have but one ogent. In conclusion it was said: “It is hard upon the plaintiffs to lose the profits they had labored to make in the sale of the property; but that was one of the incidental risks of the competition they had entered into, and affords no reason why the defendant, who had no agency in that loss, should be required to make it good.” The learned trial justice was evidently of the opinion that the evidence offered by the plaintiff brought the case within the rule laid down in *Daniel*v. *Columbia Heights Land Co.*

The court is never justified in directing a verdict except in cases where, conceding the truthfulness of the witnesses and giving full effect to every legitimate inference that may be-deduced from their testimony, it is nevertheless plain that the party has not made out a case sufficient in law to entitle him to a verdict. *Adams*v. *Washington & G. R. Co.*9 App. D. C. 26-31; *Capital Traction Co.*v. *Brown,*29 App. D. C. 473— 476, 12 L.R.A.(N.S.) 831, 10 A. & E. Ann. Cas. 813.

Applyig this rule to the evidence of the plaintiff, we think: the case is not clearly brought within the rule of *Daniel*v. *Columbia Heights Land Co.*which we unhesitatingly reaffirm. It is true that the plaintiff was denied the exclusive right off sale when applied for, and that, while he had procured a purchaser willing and able to buy on the authorized terms, an*310other person actually effected the sale at a less price. Defendants knew when they made the sale that the purchaser, stimulated by plaintiff, was willing, as well as able, to close the sale on the terms authorized by them. It does not appear that they had, in exercise of their reserved right, actually employed another agent. It may be, as reasonably inferred from the evidence, that Gadsby acted in the transaction as the agent of the purchaser, as that he acted as the agent of defendants. If he acted as the agent of the purchaser in procuring more satisfactory terms, and raising part of the money, the defendants cannot escape liability to the plaintiff, by merely making the sale themselves on different terms. *Bryan*v. *Abert,*3 App. D. C. 180-187.

Any reasonable doubt as to the inference whether Gadsby was the agent of the purchaser or of the defendants must, under the rule stated, be resolved in favor of the plaintiff. This inference is to some extent strengthened by the fact testified to, that defendants denied knowing who the purchaser was when inquired of by plaintiff, before the sale was actually completed. We are of the opinion, therefore, that it was error to direct the verdict for the defendants. It must be remembered that what we have said is applied only to the case as made by the evidence in the record.

If, upon another trial, no other evidence should be introduced, the plaintiff would be entitled to a verdict. The defendants may, however, introduce evidence sufficient to bring their ease within the rule of *Daniel*v. *Columbia Heights Land Co. supra.*In such event, the whole of the evidence may be submitted to the determination of the jury, with instructions embodying the applicable principles of law, stated above.

The judgment will be reversed, with costs, and the cause remanded with direction to grant a new trial. *Reversed.*