221 Ky. 521

Court of Appeals of Kentucky.

HAMMOND

v.

GEORGE W. GILL REALTY CO.

Oct. 25, 1927.

Appeal from Circuit Court, Shelby County.

Suit by the George W. Gill Realty Company against John M. Hammond.

Judgment for plaintiff, and defendant appeals.

Affirmed.

SANDIDGE, C.

Appellant, John M. Hammond, owns 142 acres of farm lands in Shelby county, Ky. Appellees George W. Gill and A. B. Waddill are engaged in the real estate business. They sued him to recover $785, alleged to be due them as commission for procuring for him a purchaser for his farm. The trial below resulted in a verdict for them, and he has appealed.

It is insisted for appellant that he was entitled to a directed verdict at the close of the evidence and that the trial court erred in overruling his motion for it. Our consideration of the facts leads to the conclusion that this contention cannot be sustained. The evidence from all the parties was that appellant listed his farm with appellees for sale at the price of $21,000, agreeing to pay a commission on a sale at that price of 5 per cent. on the first $10,000 and 3 per cent. on the remainder. Appellees undertook to find for him a purchaser at that price; and entered into negotiations with J. R. Miller of Knox county, Ky. It was found that Miller did not possess sufficient cash to purchase appellant's farm, and appellees undertook to bring about a deal between him and appellant by having the latter take in the trade certain properties belonging to Miller in Knox county, consisting of a stock of goods, certain town lots and their improvements, and a tract of farm lands. Appellant visited Knox county and inspected these properties. Miller visited Shelby county and inspected the farm. At a meeting between the parties at Barbourville, on February 23, 1926, Miller proposed to appellant that he would purchase his farm at $19,500 if the latter would take as part of the purchase price a stock of goods at 90 cents on the dollar, one house and lot at $8,500, one vacant lot at $1,000, or in lieu of the latter a small farm at the same price. This proposal was reduced to writing, and appellant was given time to consider it. He returned to his home in Shelbyville, and, according to the testimony of Mr. Gill, for appellees subsequently, and within the time fixed, telephoned him that he had decided to accept the proposition made by Mr. Miller, and directed him to have Miller come immediately to close up the deal. Appellant denied having had this conversation, or that he ever accepted the proposition made by Miller. He testified on the other hand that within the time fixed when he should answer he notified the parties that he had decided not to make the trade.

[1] The argument is made for appellant that, since the proposal of Miller offered as $1,000 of the purchase price either the certain vacant lot or the certain small farm, and since the testimony for appellees did not establish that appellant elected whether he would take the vacant lot or the small farm, the minds of the parties did not meet and hence that appellees did not establish that they were entitled to the commission. The evidence for appellees was that, after appellant notified Mr. Gill that he had concluded to accept Mr. Miller's offer, they telephoned the latter, and he came, and they went to appellant and offered to consummate the deal upon the terms proposed and accepted, but that appellant refused to do so. It is, of course, immaterial that the negotiations were not so conducted and the offer and acceptance so made that as between the proposed vendor and vendee specific performance could be had. The contract between appellant and appellees was aside from the proposed contract for the sale of his farm to Miller.

[2][3] Under the law relating to the question, appellees were entitled to their commission when they produced a buyer for appellant's farm ready, able and willing to pay the price fixed when it was listed with them for sale or subsequently agreed upon. If, as the testimony of Mr. Gill tends to establish, appellant notified him that he had concluded to accept Miller's offer, and if, as all the testimony agrees, appellees then brought Miller to appellant ready, able, and willing to put the deal through upon the terms proposed, appellees certainly furnished appellant the buyer for his farm upon terms agreed upon, and they were entitled to their commission. If he accepted the offer, he agreed to sell his farm for $19,500 and to take in as part of the purchase price Miller's stock of goods at 90 cents on the dollar, his certain house and lot at $8,500, and his certain vacant lot or his certain small farm at $1,000. His failure to elect whether he would take the vacant lot or the small farm upon accepting the offer, as affecting the right of appellees to the commission, is immaterial, because he by so doing agreed to sell to this purchaser upon either of the two sets of terms, and they then produced him ready, able, and willing to buy upon either of them. Hence they furnished him a buyer ready, able, and willing to purchase at a price and upon terms agreed upon between him and the real estate dealers as the terms upon which he would sell his farm as fixing his liability for commissions. In this state of case it cannot be said that appellant was entitled to a peremptory instruction.

The rights of the parties turned upon the determination of a simple issue of fact; that is, whether or not appellant notified appellees that he had concluded to accept the offer of the prospective buyer. The instructions given by the court to the jury, if erroneous in any particular, were more favorable to appellant than the facts warranted.

The evidence is sufficient to take the case to the jury and sustain the verdict. There appear to be no errors in the record to the prejudice of appellant's substantial rights. The judgment will therefore be affirmed.

Judgment affirmed.

Ky.App. 1927.

HAMMOND v. GEORGE W. GILL REALTY CO.

299 S.W. 165, 221 Ky. 521

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