Mears v. Jones , 102 Me. 485 ( 1907 )

Savage, J.

The plaintiff, a real estate agent, having beeu requested by the defendant to secure for her a tenant for one or more years for her estate at Bar Harbor, secured Abram S. Hewitt as tenant, under a written lease, dated September 6, 1902, “ to hold for five seasons as follows, 1903, 1904, 1905, 1906 and 1907, June 1st to October 15th.” The lease also contained the following provisions:— “ It is agreed and understood by both the parties hereto that in the event of the property being sold, the tenant is to give up possession of the premises and this lease is to be determined and ended at the end of the season immediately following the contract of sale.

“ Before completing the sale however of said property to any other party, the lessor agrees to offer it to the lessee at the same price and upon the same terms procurable from the intending purchaser, and the said lessee shall elect within ten days from receiving such notice whether he will purchase the said property upon the terms offered by said intending purchaser, and in case of an election to purchase the said lessor agrees to make the proper conveyance in fee simple by usual warranty deed and the lessee agrees to make the payments in accordance with such terms of purchase.

“The obligation to sell and purchase thus provided for is to be regarded as an honorable agreement between the parties hereto, but shall in no case be made the subject of litigation by either party.”

The plaintiff executed the lease for the defendant as her agent.

The rents accruing under the lease for the seasons of 1903 and 1904 were fully paid, and the plaintiff was paid each year an annual commission of $150. During the season of 1904, the demised premises were sold by the defendant to Sarah A. Hewett, the tenant’s wife. The sale was made through another agent of the defendant, and one who at the date of the lease had no authority to offer the estate for sale.

The question presented for determination is whether the plaintiff is entitled to recover the commission charged by him for the years 1905, 1906 and 1907, after the sale of the property.

The ease shows no express contract for commissions, either as to time or amount, but the plaintiff claims that he secured a tenant for the defendant for the term of five seasons, and that in consequence he is entitled, upon an implied contract, to commissions for the full term. He insists that he should not be affected or his rights limited by the fact that the defendant sold the premises during the term, and thereby determined the lease. That the defendant earned a commission is not in dispute. He accomplished the purpose of his employment. He did more than was necessary to entitle him to a commission. It would have been enough for him to secure one willing to become a tenant upon the defendant’s terms, and bring him to the defendant for acceptance as such. But he actually secured a contract of tenancy. The only question is how much did he earn? The commission of a real estate broker is usually understood to be a certain percentage upon the consideration paid, or offered to be paid or received. In the case of a sale, the problem is easy. The consideration is a single amount. In the case of a lease with annual rentals for a specified term, it would be reasonable to expect that the amount of commissions would depend, in some respects, at least, upon the length of thé term contracted for. It would not be natural to expect that the parties understood that so large a commission would be earned in securing a lease for one year as one for five years. And that the parties in this case understood that the commission was earned and was to become payable in annual instalments is, we think, reasonably to be inferred from the annual payments made while the lease was in force. And we agree with the plaintiff that he was entitled to annual commissions for the full term of the lease. But what was the full length of that lease? We think it was not for five seasons absolutely. It was for five seasons, unless the property was sold in the meantime. It was a lease for five seasons, but determinable by a sale within that term. It was made determinable by the very lease which the plaintiff procured. He therefor did not procure a lease for full five seasons, but a lease which might lawfully end sooner. He is entitled to his earnings for the kind of a lease he secured. He was employed to get a tenant for one or more years. The longer the term he secured, the greater the amount of rentals, and naturally the larger the amount of his commissions in the whole. He took the chances of sale. It matters not that the limitation in the lease was for the defendant's benefit, and may have been made, as it probably was, at the defendant’s direction. If it was so limited at the instance of the defendant, it was, just the same the kind of a lease which the plaintiff undertook to procure and did procure. And the amount of the rentals which was the consideration of the lease, and which naturally would be the basis of commissions, would vary according to the length of time which should elapse before the lease was determined by sale.

Nor does it matter that while, the lease gave the tenant an option to purchase, in case of some other intending purchaser, the sale was actually made, not to the tenant, but to the tenant’s wife. That provision was for the benefit of the tenant, and did not concern the plaintiff. If the property was to be sold, it could make no difference to the plaintiff whether it was sold to the tenant or to his wife, or to some one else.

The result is that the plaintiff is not entitled to recover commissions for the years 1905, 1906 and 1907.

Judgment for the defendant.