{
  "id": 1559445,
  "name": "McCombs v. Moss",
  "name_abbreviation": "McCombs v. Moss",
  "decision_date": "1916-01-03",
  "docket_number": "",
  "first_page": "533",
  "last_page": "537",
  "citations": [
    {
      "type": "official",
      "cite": "121 Ark. 533"
    }
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    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
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      "cite": "105 Ark. 680",
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    {
      "cite": "91 Ark. 212",
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    {
      "cite": "112 Ark. 227",
      "category": "reporters:state",
      "reporter": "Ark.",
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  "last_updated": "2023-07-14T19:35:38.519565+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "McCombs v. Moss."
    ],
    "opinions": [
      {
        "text": "\u25a0Smith, J.\nIn June, 1912, the appellant sold to the Henry Wr-ape Company, of St. Louis, Missouri, the merchantable timber on 1,810 acres of land, for the consideration of $20,466.30. Shortly after the -consummation of this sale, appellee brought suit for a commission of $1,023.30, alleged to be due him for securing the purchaser and bringing about the sale under a verbal contract which he -alleged he had with appellant to sell said land. This -contract was alleged to have been made in January, 1907, -and renewed from year to year under -an express verbal promise to pay appellee a commission of 5 per cent, should he sell said land or bring about a sale thereof.\nAppellant denied the existence of this contract, although he admitted that he had given appellee and other persons the authority to negotiate sales of his land and timber, and that compensation for such services was paid proportionate to the terms and proceeds of the sale. Appellant testified that appellee\u2019s agency to make sales for him of the land in question under .any terms was expressly cancelled in the spring of 1909, at which time he appointed' one Leslie as his general agent, and gave him the exclusive agency for the .sale of the timber in question. Appellant also denied that the purchaser was procured through the endeavors of appellee. And the defense was also interposed that, if appellee did in fact perform any services for which he was entitled to compensation in the negotiation of the sale of the timber, such services were rendered for Leslie, the appellant\u2019s general agent, and that appellant was not responsible therefor.\nIt appears that before the consummation of the sale to the Wrape Company there was an extended correspondence between that company and the appellant, all of which appears in the record in this case, and it is very earnestly insisted that the court erred in refusing appellant permission to read this correspondence in evidence, it being contended that the correspondence would show that appellee was not a party to the negotiations and was not instrumental in bringing them together.\nIt is also insisted that the verdict should have been directed in .appellant\u2019s favor under the undisputed evidence, and that error was committed in giving \u2018and refusing various instructions set out in the record.\nAppellee\u2019s evidence, however, makes a case for the jury, .and if it be true, he is entitled to recover compensation for his services, provided the jury find that he was the procuring cause of the sale, and without setting out the evidence upon that question in detail it may be said that the evidence is legally sufficient to support a finding to that effect, appellee\u2019s testimony being to the effect that he introduced Mr. Frank Wrape, of the Wrape 'Company, and Mr. Cook, the timber estimator of that company, to Mr. McCombs for the purpose of getting them together upon the sale of the timber, and that the sale was. made to the purchaser thus procured.\nIt is .also insisted that error was committed in permitting the introduction in evidence of a letter from appellant to appellee dated January 2, 1912, it being said that, \u00a1although this letter tended to show appellee\u2019s authority and \u00a1agency to negotiate .sales of land and timber, the letter 'did not relate to the timber in question. We think, however, that no error was committed in the introduction of this letter, as it tends in .a measure to contradict \u00a1appellant\u2019s statement about the revocation of the agency. And the same thing may be said of \u00a1another letter written by appellant to one Grosstoaek, who was a prospective purchaser. Appellant admits having written a letter in March, 1910, in which he stated to appellee that he wanted him \u00a1and Leslie both t\u00f3 sell \u00a1and both to get credit for their sales, whether they were made separately or together, .and that there was plenty of land \u00a1and timber for both to sell. \u00a1So that we conclude that, while there was evidence from which the jury might have found that any agency which appellee may ever have had had been cancelled, and that \u00a1any assistance rendered toy him in the negotiation of the sale to the Wrape Company was made for Leslie, the general agent, we are unable to say 'that there was no evidence to support the finding of the jury that appellee had an agency and that he procured the purchaser.\nA large number of instructions were asked and given, which \u00a1declare the law applicable 'to the question of the broker\u2019s right to a commission; but without .setting out these instructions it may be said that the law was fairly \u00a1and \u00a1accurately declared in the instructions which were given, and while certain instructions asked by appellant contain correct \u00a1declarations of the law, these instructions were covered by others which were given by the court. But to this general statement one exception \u25a0must be made. Appellant requested the court to give \u00a1an instruction numbered 11, which reads as follows :\n\u201cNo. 11. You \u00a1are further instructed that if you find that plaintiff was at one time the agent of the defendant to sell his timber and afterwards defendant \u2019discontinued plaintiff\u2019s agency and plaintiff assisted one Leslie, the agent of the defendant, in selling said timber, then he must look to the agent Leslie for his commission and not to the defendant.\u201d\nWe think this instruction is a correct declaration of the law and that it is not properly covered by any other instruction which was given. There is no question .about Leslie\u2019s agency and appellee did not contend that he had an exclusive .agency, but he denied that he was assisting Leslie. It is admitted that .appellant has paid Leslie a commission on this sale .and the evidence in the . case raises the issue that if appellee is entitled to commissions, Leslie should pay them. It is settled that where two \u00a1agents have the right to negotiate the sale of land for the owner, the .agent who actually brings about the sale is entitled to the commission where the owner acted in good faith and preserved strict neutrality between the rival agents. Murray v. Miller, 112 Ark. 227. And it is also settled that where real estate is placed in the hands of an agent or broker for sale in the ordinary way without stipulation, express or implied, that -the agent shall have the exclusive right to sell, the principal is not deprived of the right in good faith to make a sale himself free from liability to the agent for his commission. Blumenthal v. Bridges, 91 Ark. 212; Hill v. Jebb, 55 Ark. 574.\nIt is also settled that where a sale of real estate is made by an .agent with the \u00a1assistance of a sub-agent under a.n agreement to divide his commissions with him, such sub-agent is not entitled to recover the commission for the sale from the owner of the land, there being no privity of contract between them, and that where the owner, of land employed a broker to effect a sale of land, the mere fact that the owner knew that such broker had employed a sub-agent to assist in the sale, will not constitute the sub-agent the .agent of 'the owner, so .as to entitle the sub-agent to look to the owner for compensation. Sims v. St. John, 105 Ark. 680.\nThe instruction numbered 11 embodies the idea, that, although appellee procured the purchaser, yet if he did this as a sub-agent for Leslie, and not as agent for appel- \u2022 lant, he must look to Leslie for his commissions, and as appears from the cases above cited, this is a correct declaration of the law, and as it does not appear that the instruction was covered by any other on this subject, the judgment must be reversed for the failure of the court to give it.\nFor the error indicated, the judgment will he reversed and the cause remanded for a new trial.",
        "type": "majority",
        "author": "\u25a0Smith, J."
      }
    ],
    "attorneys": [
      "P. R. Andrews and John D. DeBois, for appellant.",
      "Brundidge S Neelly, -for appellee."
    ],
    "corrections": "",
    "head_matter": "McCombs v. Moss.\nOpinion delivered January 3, 1916.\n1. Brokers \u2014 sale of timber \u2014 authority\u2014commissions.\u2014Plaintiff was at one time authorized hy defendant to sell certain timber for \u00a1him, but thereafter defendant discontinued plaintiff\u2019s agency, and plaintiff assisted one L., the then agent of defendant, in making a sale, Held, the plaintiff must look to L. for any compensation.\n2. Real estate brokers \u2014 rights of two brokers. \u2014 Where two agents \u25a0have the right to negotiate the sale -of land for the owner, the agent who actually brings albout the sale is entitled to the commission, where the owner acted in good faith and preserved strict neutrality between the rival agents.\n3. Real estate brokers \u2014 other brokers \u2014 right of owner to sell.\u2014 Where real estate is placed in the hands -of an agent or broker for sale in the -ordinary way, without stipulation express of implied, that the agent -shall have the exclusive right to sell, the -principal is not deprived of the right in good faith to make a sale himself, free from liability to the -agent for his commission.\nAppeal from White Circuit -Court; J. M. Jackson, Judge;\nreversed.\nP. R. Andrews and John D. DeBois, for appellant.\nBrundidge S Neelly, -for appellee."
  },
  "file_name": "0533-01",
  "first_page_order": 557,
  "last_page_order": 561
}