Lockwood v. Halsey , 41 Kan. 166 ( 1889 )

Opinion by

Clogston, C.:

A great many errors are assigned, but as a review of the ruling upon the demurrer to the plaintiff’s evidence will reverse the case, no attention will be paid to the remainder of the alleged errors. The record presents no claim of fraud on the part of Lockwood in the transaction, neither is there any evidence to show that Lockwood possessed any knowledge or information as to the situation, condition, or title to the Graham land in Tennessee, except what he gathered by correspondence with Graham and his agents, and there is no claim but that all of such information and correspondence was submitted to Halsey, and no suggestion anywhere that shows bad faith on the part of Lockwood. This being so, but one proposition remains: Is a real-estate broker an insurer of the title where an exchange of lands is made by him ? In other words, did Lockwood contract or agree that the representations made by Graham or his agents in relation to the land were true, or does the law impose such a burden upon an agent? The rule seems to be well settled by authority and good reason, that to entitle a real-estate agent to his commission in a sale or exchange of lands, it is only necessary for him to furnish a purchaser who is willing to purchase or exchange upon the terms and conditions agreed to or proposed by the seller. This would prima fade entitle the agent to receive a commission. Where such a proposition is not accepted by the owner of the land, then before an agent can recover his commission he must still further show that the purchaser he has found is willing and able to purchase or exchange upon the terms offered by the owner of the land. (Hamlin v. Schulte, 27 N. W. Rep. 303; Stewart v. Murray, 92 Ind. 543; Moss v. Bierling, 31 N. Y. 462; Mooney v. Elder, 56 id. 238; Gillett v. Corum, 7 Kas. 156; Short v. Millard, 68 Ill. 293; McGavock v. Woodlief, 20 How. S. C. 221; Coleman v. Meade & Co., 13 Bush, 358; Redfield v. Tegg, 38 N. Y. 212; Rees v. Spruance, 45 Ill. 308; Potvin v. Curran, 13 Neb. 303; Montgomery & Co. v. Am. Emigrant Co., 47 Iowa, 91; Fraser v. Wyckoff, 63 N. Y. 445; Everhart v. Searle, 74 Pa. St. 256; Fisk v. Henarie, 9 Pac. Rep. 322.) But where they are brought together in person or by correspondence, and the purchaser is accepted and the exchange is authorized, the principal at the time being in the possession of all the knowledge and facts known to the agent, and the whole transaction on the part of the agent is done in good faith, so far as the agent is concerned the transaction is completed, and he has fully earned his commission; although afterward it may turn out that there is a defect in the title and quality or condition of the land. In this case Halsey accepted the trade and directed the exchange of papers with a full knowledge of all the facts possessed by Lockwood; and applying the rule established by the authorities to these facts, we must conclude that the court erred in overruling the demurrer to the plaintiff’s evidence, as the evidence offered by the plaintiff discloses no cause of action.

It is thei’efore recommended that the cause be reversed, with the direction to the court below to sustain the demurrer.

By the Court: It is so ordered.

All the Justices concurring.