The agency of a real-estate broker, employed under the ordinary so-called listing contract, is not exclusive and the owner may terminate it at will or by a direct sale of the property, provided he does not act in bad faith for the purpose of depriving the broker of a commission virtually earned. The broker does not earn his commission under a listing contract until he produces a customer ready, able and willing to buy on the terms stated or finally agreed to by the owner. The plaintiff showed defendant's premises in 1918 to C, who was then unwilling to purchase, their negotiations proceeding no further than an indefinite proposal by C for a lease with an option to buy, which was never effected because the rental demanded by the defendant was unsatisfactory. In 1919, without plaintiff's intervention, C's unwillingness to purchase was overcome and the defendant made the sale directly to him, whereupon the plaintiff brought the present action for a commission. Held that the trial court properly set aside a verdict for the plaintiff, since there was no reasonable basis for concluding that she was the procuring cause of the sale.
BEACH, J.
The trial court set aside the verdict for the plaintiff on the ground that there was no evidence from which the jury could reasonably have found that the plaintiff was the procuring cause of the sale. This action was taken after advisement and for reasons fully stated in a memorandum of decision. An independent examination of the evidence brings us to the conclusion that the court did not err.
Giving the fullest effect to the plaintiff's testimony, she interested the Cosgraves in the premises and introduced them to the defendant's representative as prospective tenants desiring a lease for two or three years with an option of purchase. She failed to bring the parties together upon a rental price, and rented another place to her clients for the ensuing summer. In the fall of 1918 the Cosgraves definitely disappeared as prospective tenants of the premises and from that time manifested no interest in the premises until August, 1919, when they reappeared, not as prospective tenants, but as prospective purchasers, and for the first time commenced the negotiations as active prospective purchasers, which resulted in the sale of the premises. In these negotiations plaintiff took no part.
Coming directly to the question whether there is any evidence from which it can reasonably be inferred that the plaintiff was the procuring cause of the sale, it appears that in the fall of 1918 the Cosgraves were not ready to buy. They wanted a lease for years with an option of purchase, and while that implies a desire to secure an opportunity to buy, it also implies a present unreadiness to buy. Plaintiff herself testified that the Cosgraves were not ready to buy so far as she knew. She did not at any time regard them as sufficiently interested to make it worth while to quote to them the sale price which she says Mr. Dondlinger gave her for the very purpose of quotation to prospective buyers. The Cosgraves testify that they were not actively interested as prospective purchasers until the summer of 1919, and to that extent their testimony fits in with the plaintiff's testimony and conduct. At some time prior to August, 1919, the Cosgraves did become actively interested in the premises as prospective purchasers; their mental attitude toward the premises changed from one of unreadiness to buy, to one of readiness to buy; provided, of course, that terms could be agreed on. The fundamental difficulty with the plaintiff's case is that the testimony does not in any way indicate that she assisted in bringing about this change of mental attitude, or that she brought the changed mental attitude of the Cosgraves to the attention of the defendant's representative; much less that she had any part in bringing the parties together upon the terms finally agreed on.
The plaintiff does not claim to have obtained the exclusive sale of the premises, or the exclusive agency to negotiate a contract of sale. Her employment was the ordinary so-called listing contract of employment where the exclusive sale is not given; and in such cases "it is generally held that the employment may be terminated by the owner at will, and that a sale of the property by the owner terminates the employment." Harris v. McPherson, 97 Conn. 164, 169, 115 A. 723. The owner must not, of course, act in bad faith or make the sale himself for the purpose of depriving the broker of a commission virtually earned; and, as might be expected, there is some apparent conflict, among cases close to the line, as to when a commission has been virtually earned. But all the cases on listing contracts agree that the commission is not earned until the broker produces a customer ready, able and willing to buy on the terms stated or finally agreed to by the owner. Here the consensus of the testimony is that the Cosgraves were not ready to buy and that no price had been quoted to them, at the time when the plaintiff ceased to make any effort to induce them to buy. It thus appears affirmatively that she did not interest the purchasers "to the point that they accepted, or were ready to accept, the terms of sale which the plaintiff was authorized to make." Rosenfield v. Wall, 94 Conn. 418, 421, 109 A. 409.