Roy Realty Co. v. Burkhardt , 146 Miss. 270 ( 1927 )

^* Corpus Juris-Cyc. References: Agency, 2CJ, p. 700, n. 73; p. 701, n. 74; p. 702, n. 79, 88; p. 703, n. 93, 95. On right of real estate broker to purchase real estate listed with him for sale, see annotation in 20 L.R.A. (N.S.) 1158; L.R.A. 1918F, 790. 4 R.C.L. 277; 1 R.C.L. Supp. 1102; 4 R.C.L. Supp. 260. The appellee contracted with Buehler for the purchase of a lot in the city of Biloxi, but did not receive a deed thereto, pending the receipt of which he employed Leon J. Roy, who was doing a real estate brokerage business under the name of Roy Realty Company, to sell the lot for him for ten thousand five hundred dollars or ten thousand dollars net to me." Afterwards a corporation was formed under the name of Roy Realty Company, of which Leon J. Roy became the secretary and treasurer.

The appellee lives in Illinois, and on the 6th day of April, 1925, the Roy Realty Company telegraphed him as follows:

"Have sold Lameuse street property net you ten thousand dollars your equity cash when deed is delivered according to your contract have accepted deposit five hundred dollars wire confirmation," — to which the appellee answered by letter, confirming the sale, and stating that there would be two thousand five hundred dollars coming to him after the payment of the Roy Realty Company's commissions, and the balance due by him to Buehler, suggesting that the deed from Buehler be made direct to the purchaser, and that the money coming to him be deposited in a bank at Biloxi. He also requested to be informed of the name of the purchaser; which information, however, was not furnished him until after the consummation of the sale.

Buehler executed the deed direct to the Roy Realty Company as per the appellee's suggestion, and the money due the appellee was deposited in the bank at Biloxi, which remitted it to him, and in the letter so doing advised him of the name of the purchaser.

The deed from Buehler to the Roy Realty Company was executed and delivered on May 23d, and on May 30th, about one week thereafter, the Roy Realty Company sold the land for sixteen thousand five hundred dollars, after learning of which this suit was instituted by the appellee to recover the profit made by Roy Realty Company in the purchase and sale of the land. There was a decree in accordance with the prayer of the bill from which the appellants have brought the case to this court.

The question presented is whether Leon J. Roy or the Roy Realty Company of which he was the secretary and treasurer had the right to the purchase of the land without disclosing to the appellee that he or it was the purchaser. The appellants admit, as of course they must, that an agent employed to sell land is without the right to buy it himself, without the consent of his principal; but they say that the case at bar comes within an exception to that rule, which is that, when an agent is to receive as his compensation for making the sale all that he can secure above a fixed price, he has the right to purchase it himself at the fixed price without disclosing to the vendor that he is the purchaser. Such an exception to the rule does exist, but the trouble is that the case here does not come within it.

The contract here was not that the agent should sell at a fixed price and should have all in excess thereof as his compensation for making the sale, but that he should sell at a stipulated price net to the vendor. Such a contract simply means that an agent is to sell for an amount in excess of the stipulated price sufficient to cover his compensation for making the sale, and he is not relieved thereby from, but, on the contrary, is charged with, the duty of obtaining for his principal the best price he can therefor. Turnley v. Michael (Tex. App.), 15 S.W. 912;Chezum v. Kreighbaum, 4 Wn. 680, 30 P. 1098, 32 P. 109; 4 R.C.L. 277; 2 C.J. 702. The case of Holloman v. Lindsey,110 Miss. 365, 70 So. 81, relied on by the appellants is not in point here, for the reason that the purchaser there was held not to have been the vendor's agent to make the sale.

The appellants' contention that the sale was ratified by the appellee for the reason that the letter from the bank remitting him the money to which he was entitled from the proceeds of sale also advised him of the name of the purchaser is without merit. When this letter was received by the appellee, the sale had been consummated and the right to rescind the same or to compel the appellants to account to him for the profit made by them on the resale of the land. 2 C.J. 703.

Affirmed.