Walker v. Baldwin Frick , 106 Md. 619 ( 1907 )

Both the appellant and the appellees at the time that the controversy in this case arose, were, and the appellees still are, real estate brokers in Baltimore City, and the suit was brought by the appellant to recover from the appellees half the commissions received by them from the sale by them to Sylvanus Stokes of a lot at the Northeast corner of Baltimore and Hanover streets.

The case was first tried in November 1905, and resulted in a verdict for the defendants under instructions from the Court that the plaintiff could not recover, because at the time his alleged cause of action arose, he did not hold a real estate brokers license as required by the charter of Baltimore City. On appeal from that ruling the judgment was reversed and the case remanded for a trial on the merits. 103 Md. 352. This trial was had in January, 1907, before JUDGE STOCKBRIDGE without the intervention of a jury, and a verdict was again rendered for the defendants, this appeal being taken from rulings both upon the admissibility of evidence and upon the prayers offered.

The testimony is voluminous, and there is much conflict upon one of the material questions in the case as to the alleged agreement between the parties, but the law applicable to the controverted facts, we think is settled by the decisions in this State. We shall request the Reporter to set out the prayers in full, and it will be sufficient for their proper consideration, to state the respective contentions of the parties, together with some of the salient features of the testimony, without attempting to go into all the details.

The appellant's contention is two fold: 1st. That there was an express agreement between himself and the appellees to divide with him the commissions received by the appellees in case Stokes bought through them the Northeast corner of Baltimore and Hanover streets, which he did in fact ultimately purchase through the appellees; and 2nd. that even if there was no such express agreement, that he nevertheless laid the foundation for the sale ultimately made to Stokes, was its procuring cause, and was therefore entitled under the custom shown to prevail between real estate brokers working together for a sale, to a division of the commissions.

The appellees' contention may also be said to be two fold; 1st. That the alleged agreement related exclusively and expressly to a specific piece of property known as the McClellans alley lot which they did not succeed in procuring for Stokes; and 2nd. That though Walker brought the appellees into communication with Stokes as a prospective purchaser of a hotel site in Baltimore, and although after the failure to sell him the McClellans alley property Walker endeavored with the assistance of George G. Riordan to locate Stokes on the Northeast corner of Hanover street yet the appellees during that time were endeavoring to locate Hamburger Sons on that corner for a commercial business, and had themselves taken an option upon the Northeast portion of that corner in order to enable them to control the situation whatever might be the ultimate result of the negotiations; but that the effort of Walker to locate Stokes failed entirely because of Stokes inability to finance the purchase of the whole property, and that though Stokes also desired to purchase the strip on which appellees had taken their option, believing it would be a safe transaction for him, even if he failed to secure the rest of the property, yet when he learned that the appellees had closed their option on the northeast strip, he abandonded altogether the purchase of that site, and so informed Riordan and Walker, who in turn informed the appellees; and that subsequently a Mr. Orem introduced to the appellees a Mr. Forsythe who stated that he wished to purchase that corner for a hotel he intended to erect, and that after several interviews the appellees sold him the strip they had purchased at an advance of $500. entering at the same time into an agreement that the rest of this northeast corner should be bought by him through the appellees as brokers, all of which was carried out in good faith; and that the appellees believed that Forsythe was the real principal in the transaction, and did not know or suspect that Stokes had any connection with the transaction until their agreement with Forsythe was closed, and until he directed that their contract for the slip purchased by them should be assigned to Stokes; and that Stokes was only enabled to purchase the property, at the time and in the manner described by reason of Forsythe's ability, in conjunction with a Philadelphia builder Mr. Gilpin, to furnish the additional money necessary for carrying out the plan, and which Walker Riordan had been unable to furnish.

We have examined the record carefully, and find ample evidence legally admissible and not excepted to, tending to prove these respective contentions of the parties as to the facts. It is not disputed that Walker introduced Stokes to the appellees as a customer for a hotel site in Baltimore shortly after the great fire of February 7th, 1904, and that he ultimately purchased through the appellees the property on the northeast corner of Baltimore and Hanover streets on which the Hotel Caswell was erected for him. Walker testifies that upon being authorized by Stokes to look for a hotel site he examined a number, one of which bore a sign showing it was for sale by the appellees; that he called on Frick and told him he had a New York hotel man he thought they could land if he could get a good location, and said to him, "Now Mr. Frick we are both real estate men, and if we make the sale I expect a division in the commission whatever you and I will get out of it," and that Frick replied, "certainly Mr. Walker, that is thoroughly understood among real estate people that it should be so." That Walker then described the lot he had in mind, which Frick said was between McClellan's alley and Little Sharp street, and also said that it was in contemplation to extend Hanover street above Baltimore street, in which case there would be two new corners there. That Frick said part of the McClellan's alley property was owned or controlled by the Safe Deposit Company, and that Frick and Walker then called on Mr. Marshall of the Safe Deposit Company, and Frick said to him, "Mr. Walker and I are working to secure a hotel property;" that they did not get any definite price on the Safe Deposit lot, but that Walker submitted to Stokes the McClellan's alley property and also told him of the two new corners dependent upon the extension of Hanover street; that he and Frick worked on the McClellan's alley property for some time and nearly accomplished a deal, when the Safe Deposit Company sold or built on their part of that property, and that site was then abandoned; that afterwards he had frequent interviews with Frick in which they discussed for this hotel site different lots on Baltimore street including the two contemplated new corners and the old Carrollton site, and that these discussions continued until the latter part of August, 1904, when Stokes telegraphed his friend, Samanni, to secure the extreme northeast portion of the northeast corner of Hanover street, at $20,000, when he and Samanni called on Frick and showed him the telegram, and Frick said "there is nothing in Stokes; besides I have an option on this property for a commercial business. Mr. White is with me and I do not want anything to do with Stokes, because there is no business in it; '`that Walker then replied, "suppose the commercial end does not go through on that corner, do I stand the same with you as last spring? Do I get half the commission?" That Frick said, "Yes, if Stokes buys that lot of course we stand together, but I think you are wasting your time, I have wasted enough of mine." Walker admitted on cross-examination that when he and Frick first met Stokes at the St. James' Hotel, the McClellan's alley property was the only one considered, but he testified also that Frick's agreement with him was, that if Stokes got any hotel site in Baltimore through Frick, he was to divide commissions with him, and that he did not disclose Stokes as his principal until Frick had made that agreement with him.

Mr. Frick on the other hand testified that the only agreement with Walker for a division of commissions was in case they sold the McClellan's alley property to Stokes or his associates and that there was no other specific property under consideration between himself and Walker and Stokes. He denied Walker's version of the interview at which Stokes' telegram authorizing the purchase of the northeast slip of the corner was shown him, and said that he told Walker, "You will have to count me out, I am working on that corner for Howard White for another matter, a commercial proposition;" that Walker replied, "Suppose that don't go through, and I could get Stokes there, how do we stand on that?" he answered, "Mr. Walker, you will have to let me out. I do not think Mr. Stokes means business, and I am out of it. Count me out." He testified that he knew Hamburger Sons for whom he was working to get the northeast corner, that he knew they meant business, and he preferred to keep clear of Stokes in the matter; that he and White took an option from Mr. Willis on the northeast strip of the northeast corner because they wished to control the situation in any event; that they felt confident Hamburger would take it off their hands, and even if they did not that it was a safe investment for them, and that with these views they closed their option with Mr. Willis on that strip on September 20th, and took that part of the property, and that when they finally made the deal with Forsythe they had no knowledge or suspicion that he represented Stokes or that Stokes had any interest in the transaction.

Samanni substantially corroborated Walker as to Frick's agreement to divide commissions, as did also Mr. Geo. J. Riordan, while Mr. White sustained Mr. Frick's version, and distinctly denied that given by Mr. Riordan. Stokes testified that for some time the only property under his consideration was the McClellans alley property, and that after that fell through, Frick gave him a price on the northwest corner of Hanover St. which he considered, but finding that the northeast corner was a better shaped lot he preferred that; that when he sent the telegram of Sept. 20th to Samanni to purchase the strip of 19 feet, part of the northeast corner, his financial arrangements would not have enabled him to close for the whole property, but he was able and willing to take the 19 foot strip, in order to facilitate the whole transaction — believing that he could thereby control the whole property, and that if they did not, he would be safe in the purchase of the strip, He said he was somewhat sore when he found some one else had purchased that strip, and that he then dropped the whole matter, and when Riordan and Walker telephoned him and held out hopes of getting it still he told them he regarded the thing as ended and dismissed it from his mind.

Mr. Riordan also testified that Stokes informed him he refused to proceed any further with the negotiations for that property, and that he so informed Mr. Frick, and Frick testified to the same effect, and that Riordan told him to go ahead, and he replied "we have gone ahead and have bought the property." Frick further testified that about a week after this, Orem said he understood Frick and White had bought the northeast corner of Hanover St. and asked what they were going to do with it, and he replied "we bought it for a wholesale commercial proposition." Orem said "I have got a man who wants that for a hotel. Can we get it?" Frick said "I will see what can be done," and told Hamburger what Orem said. Hamburger said he would not stand in the way if anyone would put up a good hotel there, and that Frick could go ahead, but not to let the northwest corner get away as he wanted that if a hotel went up on the other corner; and that Frick then went on with Orem and Forsythe, and sold them the northeast corner, supposing that Forsythe was Orem's principal, and not knowing or suspecting Stokes to be in anyway interested until Orem directed their contract for the 19 foot strip to be assigned to Stokes.

Stokes testified that after abandoning his negotiations through Walker and Frick, he was induced by Forsythe to take up the matter again; that he, Stokes, found it would require about $100,000 more than he had expected or could control to go ahead with the plan and that Forsythe claimed that he and Gilpin could raise the additional amount, and that he then authorized him to carry out the plan he proposed if he could do so, and that he would not have taken up the matter again unless Forsythe had submitted his proposition or some one else had submitted one equally as desirable.

It would serve no useful purpose to detail more of this voluminous testimony. What we have recited will enable us to consider the propriety of the rulings appealed from.

Four exceptions were taken to rulings upon the admissibility of testimony. Stokes being on the stand, after stating when and how he abandoned the negotiations with Walker Riordan, and when and how they were opened with Forsythe, was asked by Walker's counsel whether he had any conversations with Walker during that interval, and said he had frequently. He was then asked, "what did you generally discuss?" Objection being made, the objection was sustained, and the first exception was to this ruling. If this question had been allowed as framed, the witness could have detailed in response, the private discussions between himself and Walker though out of the presence of the appellees or any of them. Having no knowledge of these discussions, they could not be bound by anything which either Walker or Stokes might say upon the subject in controversy, and the Court was clearly right in refusing to admit the evidence. Walker v. Baldwin, 103 Md. 352.

The second exception arose in this way. During the cross-examination of Stokes by the counsel of the appellees, he was required by the Court to make the witness his own, if he wished to proceed further upon his line of interrogatory, and he made the witness his own. The line of interrogatory referred to the testimony we have already mentioned tending to show that the sale ultimately made to Stokes was not brought about by any effort or influence of Walker but was solely the result of an entirely new negotiation begun and completed through Forsythe; without any knowledge of the appellees that Stokes had any interest in the matter. The appellant objected to that whole line of testimony, both in chief and on cross-examination, but the Court overruled the objection, and admitted the testimony. It is well settled that where negotiations for a sale through a broker are bona fide broken offand abandoned, and a sale finally effected wholely through the influence of another, the first broker is not entitled to his commissions. Livezey v. Miller,61 Md. 336; Hollyday v. Southern Agency, 100 Md. 296. There was no error therefore in this ruling.

At a later stage of the case when Frick was testifying for defendants, objection was made to his stating the details of Forsythe's plan of financing the new deal and the objection was sustained correctly. At that time the Court said, referring to Stokes' testimony on that subject, "Of course on proper motion, the plaintiffs evidence will be excluded on same lines." It is not apparent how these details, though strictly immaterial, could have worked any injury to the plaintiff, but however that may be, no motion to exclude that part of plaintiffs testimony was made, and it cannot now be complained of.

On his direct examination Frick was asked what his agreement was with reference to commissions, and he said it was to divide commissions. Appellees counsel then said "in case of what?" and Frick answered, "in case we sold the property on Baltimore street between McClellan's alley and Little Sharp street to Sylvanus Stokes or his associates." Up to this point there was no objection. Appellees counsel then asked "Did that agreement extend to any other property than the McClellan's alley property?" which was objected to as leading, and the objection was overruled, to which the 3rd exception was taken. Frick's reply was, "not that I know of."

In Lee v. Tinges, 7 Md. 234, the Court approved the definition of a leading question given by Mr. Greenleaf in vol. 1, sec. 434, "where he describes it as embodying a material fact, and admitting of an answer by a simple negative or affirmative," and the Court said the question asked in that case did present a material fact and might very well have been answered by the witness by simply saying "I was, or was not," and therefore held the exclusion of the question by the lower Court to be correct. So here, the question asked presented a material fact and could have been answered "it did, or did not," and it is quite clear that the witness could have no difficulty in knowing what answer was expected. Strictly tested by the above rule the question would seem to be leading, but we cannot perceive how Walker could be injured by the answer actually given, viz., "not that I know of." Assuming the witness, as we must, to be truthful, his previous answer was a practical denial that the agreement extended to any other property, and standing alone would necessarily be so regarded. When he answered the next question, "not that I know of," instead of saying, "it did not" he weakened his previous answer, and upon the question of fact involved, the plaintiff stood in a better position than before the last answer. Moreover, a few moments later the same witness was allowed to say, without objection, that "the only agreement was when Walker brought up the McClellan's alley property." As there is in our view no concurrence of error and injury we would not be justified in reversing, on this exception.

The fourth exception was taken to the admissibility of all of Frick's testimony between pages 104 to 128 of the record, so far as it proves any conversations with White, Gilpin, Orem, Forsythe or others or as to any plan entered into by the witness and any one of the parties defendants, or those with whom they were operating out of the presence of the plaintiff, or of Stokes, but the Court overruled the objections.

What we have said in reference to the second exception will suffice to show that we think there was no error in this ruling and that its correctness is sustained by the decision inLivezey v. Miller, supra. This brings us to the rulings on the prayers.

We are of opinion the two contentions of the appellant were fully and fairly submitted to the Court sitting as a jury, with whose findings of the facts we are not concerned.

The plaintiff's first contention, based upon the agreement alleged by him, was fully and clearly presented by his ninth prayer which was granted. If the Court had found such an agreement from all the evidence in the case, the verdict would have been for the plaintiff. His second contention was covered by his third and fourth granted prayers, and the measure of recovery upon either contention was clearly and properly stated in his seventh granted prayer.

If the plaintiff's third prayer is subject to any criticism, it would seem to be that it is too liberal to him, and would tend to mislead a jury (if one had been sitting in the case) by not clearly discriminating between the mere result of the introduction of the purchaser, and the procuring cause of a sale.

The plaintiff's 1st, 2d 5th, 6th, 8th and 10th prayers were all properly rejected. All the cases agree that the disclosure of the purchaser's name and the putting of him in communication with the defendant, by the plaintiff must be not only the foundation upon which the negotiation was begun, but upon which it wasconducted and the sale ultimately made. Keener v. Harrod,2 Md. 71; Hollyday v. Southern Agency, 100 Md. 296. The broker must be shown to be the procuring cause of the sale. The intervention of the plaintiff in beginning the negotiations, and their subsequent culmination in a sale will not suffice unless those negotiations were the ultimate cause of the sale. None of the plaintiffs rejected prayers conform to these requirements. Nor do any of them take into account the evidence to show abandonment by Stokes of negotiations through Walker, and the subsequent negotiations through Forsythe, without defendant's knowledge that Stokes was his principal.

There was no evidence of any employment of Walker by the appellees to sell this property, and the sixth prayer would have been misleading if granted.

There was no evidence of any agreement to compensate the plaintiff for services, a very different thing from divisions of commissions, and the eighth prayer of plaintiff was properly rejected.

The defendants' rejected prayers are not before the Court. Their fourth and fifth prayers only were granted, and these we think properly presented their two contentions upon the principles laid down in the authorities we have cited.

We think there was ample evidence to sustain the defendants fifth prayer and the special exception thereto was properly overruled.

Finding no error in any of the rulings of the learned Court below the judgment will be affirmed.

Judgment affirmed with costs to the appellees above andbelow.