Kock v. Emmerling

THIS case was brought up by writ of error from the Circuit Court of the United States for the eastern district of Louisiana.

The facts are stated in the opinion of the court.

It was submitted on printed argument by Mr. Pike for the plaintiff in error, and argued by Mr. Benjamin for the defendant.

Mr. Pike contended, that neither by the common law nor by the law of Louisiana was the broker entitled to any commission.

On the subject of the common law, he cited the cases of Broad v. Thomas, 7 Bing., 99, and Read v. Rann, 10 Barn. and Cress., 438.

On the subject of the law of Louisiana, he cited many authorities from the civil law, and the case of De Santos v. Taney, decided in November, 1857. With respect to this latter case, he said:

In De Santos v. Taney, in November, 1857, the very question in this case came before the same court. In that case, a real estate broker, employed to find a purchaser for a house, had done so. The price and terms were agreed to and settled, and accepted by the defendant in writing. The bill of sale was drawn and ready, when a dispute arose as to who should pay certain taxes, and the matter was broken off. The court affirmed the decision in Blanc v. the Improvement and Banking Co., and Didion & Duralde; and said that, in all the cases relied on by the broker, the contract was consummated, though, through bad faith towards the broker on the part of his principal, it had been suspended, and apparently abandoned.

The court said, 'Negotiations for sales through brokers, interrupted and broken off at every stage of progress to completion, are of daily occurrence. But all the authorities confirm the doctrine of Judge Martin, as we understand it, that no brokerage is due until the sale is complete and executed; that is to say, until the consideration of the sale has passed to the vendor.'

Thus it is settled, by the legitimate interpreter of the law of Louisiana, as the law of that State under its code, that, as is the law in England, the broker, if paid at all, is paid by way of commissions-i. e., by a per centage upon the money actually received on a completed sale; and that if there be no sale he is entitled to nothing.

And this is a reasonable doctrine. The compensation in case of success is very large; and, in fixing it so high, all the uncertainties and difficulties to be anticipated in completing a sale, whether arising from the whims and caprices of the parties, or from any other cause, may well be regarded as taken into consideration. The broker's implied contract is, in effect, an aleatory one. For the chance of a large reward, he risks his labor and trouble. He takes the chances of success, and must be supposed to have considered the caprice, even, of each party, as an element of the calculation. And a plain reason for this is, that it would be, in almost every case, impossible to prove that mere caprice broke off the negotiation. As he has no legal right to force a party to conclude a sale or purchase, that he may have his fee, so he has no right to insist on knowing the reason which caused the refusal to proceed, any more than if he were a marriage broker. In this case, as in that of a marriage not effected, he must, to recover, establish a proposition he cannot establish, to wit: that the parties refusing to proceed did so for an insufficient reason.

It is not shown in this case that he incurred any expenses or made any outlay. The suit is for his commissions, and the judgment allowing him such commissions is surely erroneous.

Mr. Benjamin said:

This case is a very simple one. Emmerling, a real estate broker, was employed by Kock to find a purchaser for his plantation at the price of $250,000. A purchaser was found by the broker, with whom the bargain was made by Kock at the price fixed by himself. After making a verbal agreement for the sale, Kock changed his mind, and refused to sell. The question is, whether he can lawfully refuse to pay his broker the commission earned, on the ground that the sale was not actually effected, when it was his own act that prevented the accomplishment of the sale.

The judge below decided rightly that the commissions were due.

C. C., 2035.

Righter v. Aleman, 4 Rob., 45.

Wells v. Smith, 3 La. Rep., 501.

Levistones v. Landreaux, 6 Annual, 26.

Lestrade v. Perrera, 6 Annual, 398.

McGavock v. Woodlief, 20 How., 221.

Mr. Justice McLEAN delivered the opinion of the court.