Fuller v. Preston

Citations

• 107 Kan. 250
• 191 P. 493
• 1920 Kan. LEXIS 55

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Real-estate Agent — Purchaser Produced — “Option Contract” Entered Into — Right to Commissions. Where a broker who has been employed to find a purchaser for real estate produces a prospect with whom the owner enters into a contract which otherwise would amount to one for a sale, its character as such is not necessarily lost, and the right to a commission defeated, by the mere fact that it reserves to the proposed buyer the right to decline to complete the purchase, the owner in that event to retain part payments already made.</p> <p>2. Same — “Option Contract’’ Between Landowner and Purchaser Constituted a Sale. The evidence is held to show prima facie that a written contract entered into by the owner of real property and a prospective buyer was one for a sale, notwithstanding it described itself as an option agreement, contained no promise on the part of the' prospective buyer to complete the purchase, and enabled him after an occupancy of three years to escape further liability by turning back the property, the owner to retain all payments that had been made. Among other circumstances regarded as justifying this view are these: The contract included an assumption by the buyer (unqualified unless by inference) of an existing mortgage, and of the payment of taxes and insurance; this mortgage was given to raise money to erect a building suitable to the buyer’s needs; the’ buyer took possession, installed expensive machinery, and kept up the payments at least until the time of the trial, such payments being considerably in excess of the rental value.</p> <p>3. Same — Amount on Which Commissions Should Be Based. Where property is listed with a real-estate broker for sale for a stated amount, which includes an existing mortgage, the commission, unless for some special reason to the contrary, should be based on a sale for that amount. But where, in order to promote the sale, money for improving the property is raised by a mortgage exec