The statement of facts which the supreme court of a territory is
called on to make is in the nature of a special verdict, and the
jurisdiction of this Court is limited to the consideration of
exceptions and to determining whether the findings of fact support
the judgment.
The statement of facts should present clearly and precisely the
ultimate facts, but an objection that it does not comply with the
rule because it is confused and gives unnecessary details will not
be sustained if a sufficient statement emerge therefrom.
Where the supreme court of a territory proceeds on the bill of
exceptions before it as containing all the evidence in the case
below, and the record in this Court shows that all the evidence was
contained in the bill of exceptions, that is sufficient, even
though the bill of exceptions may have failed to state that it
contained all the evidence given in the case.
A broker is not entitled to commissions unless he actually
completes the sale by finding a purchaser ready and willing to
complete the purchase on the terms agreed on; his authority to sell
on commission terminates on the death of his principal, and is not
a power coupled with an interest; and, in the absence of bad faith,
he is not entitled to commissions on a sale made by his principal's
administrator, without any services rendered by him, even though
negotiations conducted by him with the purchaser, prior to owner's
death, may have contributed to the accomplishment of the sale.
71 P. 965 affirmed.
Page 204 U. S. 229
This was an action brought by Crowe in the District Court of
Santa Cruz County, Arizona, against Trickey, administrator of the
estate of N.H. Chapin, deceased, to recover the sum of $5,000 as
commission on a sale alleged to have been effected by Crowe for
Chapin, during his life, of a one-fourth interest in a mine. The
case was tried by the district court without a jury, a jury having
been waived by agreement of the parties, and that court made
findings of fact and stated conclusions of law therefrom, upon
which it rendered judgment in Crowe's favor, January 10, 1902, to
be paid in due course of administration. From that judgment the
case was carried by appeal to the Supreme Court of the Territory of
Arizona, which, March 20, 1903, reversed the judgment, and remanded
the case to the district court with directions to render judgment
for defendant. 71 P. 965.
The record states:
"In the above-entitled action, the supreme court finds the facts
to be as follows:"
"I. Previous to March, 1899, a mine known as the Pride of the
West mine was owned by three parties. A man named Olsen owned
one-half thereof, and Norman H. Chapin, the defendant's intestate,
and Jerry Neville each owned one-fourth interest therein."
"In March, 1899, the plaintiff Crowe brought this mine to the
attention of one Emerson Gee and his associate, A. R. Wilfley.
Subsequently, in the latter part of March, 1899, Wilfley purchased
Olsen's one-half interest, and made an agreement with Chapin and
Neville in pursuance whereof a deed to the remaining one-half
interest was executed by Chapin and Neville and placed in escrow,
the terms of the escrow agreement providing that the deed was to be
delivered to Wilfley upon the payment by him of the sum of $100,000
in cash, on or before the first day of April, 1900."
"II. It was verbally agreed between Crowe on the one part and
Chapin on the other, representing himself and Neville, that Crowe
was to receive ten percent of the purchase money
Page 204 U. S. 230
received by them for their interest in the mine as commission
for making the the sale. Such deed and escrow agreement were
executed by Chapin and Neville on the first day of April,
1899."
"III. Prior to the first day of April, 1900, Chapin and Neville
both died."
"M. M. Trickey was appointed administrator of Chapin's estate,
and one Henry H. Harmon was appointed administrator of Jerry
Neville's estate."
"Wilfley failed to pay the money and take the property under his
option, and after the first day of April, 1900 at the expiration of
the time mentioned in the escrow agreement, and in accordance with
the terms thereof, the deed in escrow was returned to Trickey, the
administrator of Chapin's estate."
"IV. Thereafter, and on the seventh day of April, 1900, upon the
payment of $1,000 by Wilfley, the administrators of these two
estates made another agreement with Wilfley, by the terms of which
they agreed to execute a deed to a one-half interest owned by the
two estates, upon the payment of the purchase price of $100,000, in
specific amounts, on different dates therein expressed. This option
also lapsed."
"V. After said lapse, and on the nineteenth day of June, 1900,
M. M. Trickey, as administrator of the estate of Chapin, entered
into another agreement which was offered in evidence by the
plaintiff, and appears in the bill of exceptions as 'Exhibit
3.'"
"By this agreement, Trickey, as administrator, gave to Wilfley
an option to purchase the one-fourth interest in the mine owned by
the estate of Chapin, and obligated himself to execute to Wilfley a
deed for such interest upon the payment of $5,000 in cash, $5,000
within three months; the further sum of $5,000 within six months;
the further sum of $5,000 within nine months; the further sum of
$5,000 within twelve months, and the further sum of $25,000 within
eighteen months."
"The plaintiff Crowe had nothing whatever to do with either of
the last-mentioned options, or with the sale of the property after
the death of Chapin. "
Page 204 U. S. 231
"VI. In pursuance of this option, Wilfley paid to Trickey the
sum of $5,000 in cash on the nineteenth day of June, 1900, and the
following sums on the following dates, respectively: $5,000 on
September 19, 1900; $5,000 on December 19, 1900; $5,000 on March
20, 1901; $5,000 on June 17, 1901; $25,000 on December 7,
1901."
"VII. The above-mentioned agreement (Exhibit 3) was only an
option to purchase, and under it there was no obligation on the
part of Wilfley to pay any portion of the purchase price, and no
obligation on the part of Trickey to deliver the deed mentioned in
the agreement until the last payment of $25,000, in December, 1901,
had been made."
"VIII. On the tenth day of December, 1900, Crowe presented to
Trickey, as administrator of Chapin's estate, in accordance with
the law of the Territory of Arizona, his claim against the estate
of Chapin for"
"ten percent of the purchase price of the Pride of the West
mine, agreement for the sale of which was entered into about April
first, 1899, and which said agreement of sale was made by Chapin
and Neville to A. R. Wilfley, and which sale was brought about by
the said George W. Crowe, upon the agreement that he was to receive
ten percent commission upon said purchase price from said Chapin
and Neville, one-half of said ten percent being $5,000."
"IX. This claim was rejected by the administrator, and he
thereupon brought this action in the District Court of Santa Cruz
County on the twenty-fifth day of January, 1901 at which time the
estate of N.H. Chapin, deceased, was solvent, and amply able to pay
all debts of the said estate, and the said Chapin nor the said
Trickey nor anyone else had paid to the plaintiff the said sum of
$5,000, or any part thereof, or anything on account thereof."
"The case was tried before the court, without a jury, a jury
having been by agreement of parties waived, and the court made the
following findings of fact:"
"[Here follow findings of fact and conclusions of law by the
district court, upon which judgment was rendered in favor
Page 204 U. S. 232
of the plaintiff, and an appeal prayed therefrom to the supreme
court as stated.]"
"The only statements of fact in the record were contained in the
foregoing findings of fact, and in a bill of exceptions. The said
bill of exceptions, which was transmitted to the Supreme Court of
Arizona with the record in this case, did not state that it
contained all of the evidence which was introduced upon the trial
of the case in the district court, nor upon the points presented to
the Arizona supreme court for its decision, nor does it otherwise
appear from the record in the case that all of the evidence which
was introduced upon the trial of the case in the district court was
before the said Supreme Court of Arizona. The abstract of the
transcript which contained the evidence stated that 'the defendant,
by his bill of exceptions, which contained all the evidence taken
on said trial, and which is as follows:' then follows the bill of
exceptions reciting the testimony of the different witnesses,
covering some 23 pages, and at the conclusion thereof the following
allowance:"
" The foregoing bill of exceptions was presented to me for
allowance on the 24th day of January, 1902, and was by me on the
same date submitted to Messrs. Hereford & Hazzard, attorneys
for the opposite party, who made no objection thereto, whereupon
the said bill of exceptions is now by me signed, approved, and
allowed as of the said 24th day of January, 1902. Geo. R. Davis,
Judge;"
"but the record contains no certificate from the clerk or court
that the evidence contained in the bill of exceptions constituted
all of the evidence taken on the trial in the lower court, and that
fact is controverted by the counsel for the appellee."
"The Arizona Supreme Court found the following facts:"
"I. That the efforts of the plaintiff, Crowe, resulted in
procuring the purchaser Wilfley not to purchase absolutely, but to
take an option on the purchase of the property involved for
$100,000; that Crowe's principals accepted a deed to the property
and placed it in escrow; that, although Chapin died before the
expiration of that escrow agreement,
Page 204 U. S. 233
the deed executed by him remained subject to the order of the
purchaser, and that, if he had availed himself of the terms of that
agreement, the sale would have been completed and plaintiff Crowe
would have been entitled to his commission; but that Wilfley failed
to make the payment and take up the deed, and, after the expiration
of the option and after Chapin's death, the deed was returned to
the administrator of Chapin's estate and the transaction was closed
without any sale's being made."
"II. That the sale of the property that was subsequently
effected was the result of the negotiations between Trickey, the
administrator of Chapin's estate, and Wilfley; that, before the
date of the sale, Crowe's power or authority to act in the matter
had been terminated, and his agency revoked by the death of
Chapin."
"III. That, in regard to the latter negotiations, Crowe rendered
no services to Trickey, received no appointment or agreement from
Trickey in reference to the matter, and took no part whatever in
the ultimate sale."
"IV. That the plaintiff, Crowe, did not, between the 8th day of
February, 1898, and the 11th day of January, 1900, bring about a
sale of Chapin's interest in the property in controversy."
"V. The said A. R. Wilfley paid to the said defendant the sum of
$50,000, as follows; April 7, 1900, $500; June 19, 1900, $4,500;
September 19, 1900, $5,000; December 19, 1900, $5,000; March 20,
1901, $5,000: June 17, 1901, $5,000; December 7, 1901, $25,000, not
for the right, title, and interest of the said Norman H. Chapin,
but for the 'right, title, and interest of the said estate of
Norman H. Chapin, deceased, in and to' the said property, in
compliance with the terms of the contract of sale and title bond
executed to the said Wilfley by Trickey, the administrator of said
estate."
[Here follow conclusions of law and judgment.]
Page 204 U. S. 234
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
The supreme court of the territory was called upon to make a
statement of the facts of the case in the nature of a special
verdict, and also the rulings of the court in the admission or
rejection of evidence when excepted to. Our
Page 204 U. S. 235
jurisdiction is limited to the consideration of such exceptions
and to determining whether the findings of fact support the
judgment.
Harrison v. Perea, 168 U.
S. 311;
Young v. Amy, 171 U.
S. 179.
The statement of facts required by the statute should present
clearly and precisely the ultimate facts. And while it may be
objected to the statement in this case that it does not properly
comply with that rule, for it is quite confused and gives a mass of
unnecessary details, yet we think the imperfections in that regard
should not be held fatal, as a sufficient statement finally
emerges. This will be understood by reference to the statement
itself, which we have set forth for that purpose.
The bill of exceptions contains some minor rulings on questions
propounded to witnesses, but the exceptions thereto were not
insisted upon in the supreme court nor considered by that tribunal,
so that the question before us is whether the findings of fact
support the judgment.
But several of the errors assigned are to the effect that the
supreme court erred in considering or determining the case upon
questions of fact, because the bill of exceptions failed to state
that it contained all of the evidence given in the case, and the
record failed
"to show that the bill of exceptions contains all of the
evidence given in the case, or all of the evidence bearing upon the
questions involved in the decision"
of the court.
The supreme court proceeded upon the record as containing all
the evidence, and we are not inclined to hold that the contention
that it should not have done so is open to our consideration under
the limitations of the statute. But be that as it may, we think the
record shows that all the evidence was contained in the bill of
exceptions, and that that is sufficient, even though the bill
itself did not so state in express terms.
Gunnison County
Commissioners v. Rollins, 173 U. S. 255.
Paragraphs 1485 and 1582 of the Revised Statutes of Arizona,
1901 (pp. 461, 474), provide:
Page 204 U. S. 236
"Every paper filed in a case shall constitute a part of the
record of the case, including depositions and all written evidence
and exhibits offered or admitted in evidence, and no papers thus
filed or admitted in evidence, or offered in evidence and rejected
by the court, need be incorporated in a statement of facts in order
to make it a part of the record."
"On taking an appeal . . . , the appellant . . . shall cause to
be filed in the supreme court . . . the original record of the
case, together with a copy of all minute entries made in the case,
the same to be certified to by the clerk of the district court,
with the seal of the court affixed, that it contains a true copy of
all minute entries made in the case, and that the papers thereunto
attached are all the papers constituting the record of the case. .
. ."
The clerk accordingly transmitted to the supreme court all of
the original records and copies of the minute entries. The case
coming on for hearing, the minute entries state:
"The trial then proceeded upon the pleadings herein, in the
presence of and before the court sitting without a jury, a jury
having been expressly waived in open court by both parties hereto,
and the plaintiff, to maintain upon his part the issues herein,
introduced certain documentary evidence, and also called as a
witness the following named person, to-wit, George W. Crowe, the
plaintiff, who was duly sworn, examined, and cross-examined, and
thereupon the plaintiff rested his case. The defendant then, to
maintain upon his part the issues herein, called as a witness the
following named person, to-wit, M. M. Trickey, who was duly sworn,
examined, and cross-examined, and thereupon the defendant rested
his case. The evidence being now adduced and the case closed,
arguments of the respective counsel followed, and the cause being
now fully submitted, the same was, by the court, taken under
advisement."
The evidence of two witnesses, Wilfley and Gee, was taken by
deposition, and their depositions were sent up in the transcript.
The minute entries show that only two witnesses,
Page 204 U. S. 237
Crowe and Trickey, administrator, were examined before the
court, and their testimony is given in narrative form in the bill
of exceptions, as well as the testimony of Wilfley and Gee. The
minute entries, in speaking of the introduction of "documentary
evidence," were manifestly intended to embrace depositions in that
term. There is no room for presuming that any evidence was omitted,
and the points to which the evidence adduced was addressed preclude
such a suggestion.
We are brought, then, to the question of the sufficiency of the
facts found to support the judgment. The findings may be summarized
as follows:
Chapin and Neville each owned one-fourth of the mine, and on
April 1, 1899, signed a paper addressed to the Consolidated
National Bank of Tuscon, Arizona, which is contained in the bill of
exceptions, and, by reference, in the statement of facts, and was
couched in these terms:
"Gentlemen: the enclosed deed from N.H. Chapin, Marie Chapin,
Jerry Neville, and Refugia Neville, parties of the first part, to
Arthur R. Wilfley, party of the second part, is to be delivered to
the said Arthur R. Wilfley upon the payment of the sum of $100,000
at or before the expiration of one year from the date hereof."
"And you are further directed that all moneys sent you from time
to time by the said Arthur R. Wilfley, with instructions to apply
the same to the payment of the aforesaid purchase money, shall be
so applied and the same placed to the credit of N.H. Chapin and
Jerry Neville."
"Therefore, if the said Arthur R. Wilfley shall pay or cause to
be paid the sum of money above mentioned at or before the time
aforesaid, you will then deliver the said deed to the said A. R.
Wilfley, his agent or assigns. Otherwise the said deed is to be
held subject to the order of the said N.H. Chapin and Jerry
Neville."
"Dated Washington, Arizona, April first, 1899."
This paper and the deed therein mentioned were deposited in
escrow in the bank on that day.
Page 204 U. S. 238
The terms of the transaction had been arranged the latter part
of March, and it was verbally agreed that Crowe should receive ten
percent commission on the purchase money received by Chapin and
Neville.
Chapin died January 11, 1900, and Trickey was appointed
administrator February 8, 1900, and qualified as such. Neville died
January 3, 1900, and Harmon was appointed administrator and
qualified as such.
Wilfley failed to pay the money and take the property, and after
the expiration of the time mentioned in the escrow agreement, the
deed in escrow was returned to Trickey, administrator.
On April 7, 1900, the administrators of the two estates made an
agreement with Wilfley to execute a deed to the half interest on
payment of $100,000, in amounts prescribed. This option also
expired. Thereafter, and on the nineteenth of June, 1900, Trickey,
as administrator of the estate of Chapin, entered into an agreement
with Wilfley to convey to him the right, title, and interest of the
estate of Chapin in the mining property (described as a quarter
interest), on payment of $50,000, in designated amounts, and these
payments were subsequently made.
Crowe had nothing whatever to do with either of the
last-mentioned options or with the sale of the property after the
death of Chapin.
And the claim he presented to Trickey as administrator of
Chapin's estate was for $5,000, being one-half of the commission
agreed to be paid to him in March, 1899, on the purchase price
which would have been received by Chapin and Neville if the option
of April 1, 1899, had been carried out.
In these circumstances, we concur in the judgment of the supreme
court of the territory.
In
McGavock v.
Woodlief, 20 How. 221, it was laid down that, in
order to be entitled to commission,
"the broker must complete to sale -- that is, he must find a
purchaser in a situation and ready and willing to complete the
purchase on the terms agreed on."
But this rule is inapplicable when the
Page 204 U. S. 239
owner refuses, without sufficient reasons, to fulfill the
agreement which the agent has made.
Kock v.
Emmerling, 22 How. 69. Even though he could not
have been compelled to carry out his contract if he had chosen to
set up the statute of frauds.
Holden v. Starks, 150 Mass.
503. Or when the agent's authority is revoked in bad faith before
the completion of the sale.
Sibbald v. Bethlehem Iron Co.,
83 N.Y. 378. In this case, the subject was much considered, and
Finch, J., in delivering the opinion of the court, said, among
other things:
"It follows, as a necessary deduction from the established rule
that a broker is never entitled to commissions for unsuccessful
efforts. . . . The broker may devote his time and labor, and expend
his money with ever so much of devotion to the interests of his
employer, and yet if he fails -- if, without effecting an agreement
or accomplishing a bargain, he abandons the effort, or his
authority is fairly and in good faith terminated -- he gains no
right to commissions. . . . And in such event it matters not that,
after his failure and the termination of his agency, what he has
done proves of use and benefit to the principal. . . . He may have
introduced to each other parties who otherwise would have never
met; he may have created impressions which, under later and more
favorable circumstances, naturally lead to, and materially assist
in, the consummation of a sale. . . . This, however, must be taken
with one important and necessary limitation. If the efforts of the
broker are rendered a failure by the fault of the employer; if
capriciously he changes his mind after the purchaser, ready and
willing and consenting to the prescribed terms, is produced; or if
the latter declines to complete the contract because of some defect
of title in the ownership of the seller -- some unremoved
encumbrance; some defect which is the fault of the latter -- then
the broker does not lose his commissions. . . . One other principle
applicable to such a contract as existed in the present case needs
to be kept in view. Where no time for the continuance of the
contract is fixed by its terms, either party is at liberty to
terminate it at will, subject only to the ordinary requirements of
good faith.
Page 204 U. S. 240
Usually the broker is entitled to a fair and reasonable
opportunity to perform his obligation, subject, of course, to the
right of the seller to sell independently. But, that having been
granted him, the right of the principal to terminate his authority
is absolute and unrestricted, except only that he may not do it in
bad faith, and as a mere device to escape the payment of the
broker's commissions. . . ."
"If, after the broker has been allowed a reasonable time within
which to produce a buyer and effect a sale, he has failed to do so,
and the seller in good faith and fairly has terminated the agency
and sought other assistance by the aid of which a sale is
consummated, it does not give the original broker a right to
commissions because the purchaser is one whom he introduced, and
the final sale is in some degree aided or helped forward by his
previous unsuccessful efforts."
In the present case, what Crowe had obtained was not an absolute
contract of purchase, but an option on the purchase.
The deaths of Chapin and Neville terminated the authority of
Crowe to sell on commission, which was not a power coupled with an
interest -- that is, an interest in the property on which the power
was to operate.
Hunt v.
Rousmanier, 8 Wheat. 174;
Walker v.
Walker, 125 U. S. 339.
Nevertheless, up to the first of April, 1900, if Wilfley had
availed himself of the terms of the escrow agreement, the sale
might have been completed and Crowe have been entitled to his
commission; but Wilfley did not do so, and the deed held in escrow
was returned in accordance with the terms of that agreement.
There is no legal basis for the imputation of bad faith, and it
is not pretended that Crowe was employed by Trickey or rendered any
service to him in the matter of the sale. The bare fact that what
he had done in the former negotiations may have contributed to the
accomplishment of the sale by Trickey is not enough to sustain his
claim for the commission sued for.
Judgment affirmed.
