Vanderbilt Law Review

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Offer and Acceptance: Listing Property for Sale With Broker: In Jenkins v. Vaughan' the facts were these: Vaughan had a drug store for sale. He gave Jenkins, a broker, an exclusive listing for 90 days and promised to pay Jenkins a commission if the property were sold within that time "either through you or any other reason." This listing was made October 10, 1951. On December 10, 1951, Vaughan directed an employee of Jenkins to cancel the listing. And on December 28 Vaughan sold the store to a purchaser procured by another broker. Jenkins had not spent any appreciable time or money trying to find a purchaser. The court held that Vaughan was not required to pay a commission to plaintiff Jenkins. The principles to be applied in such cases are admirably set forth in an opinion by Judge Felts in Hutchinson v. Dobson-Bainbridge Realty Co. The Judge there points out that the owner is able to revoke the agent's power in spite of a listing that has been stated to be for an extended time. He indicates, however, that a separate question is whether the owner is bound by contract to pay the agent. The listing is an offer to become bound in a unilateral contract. That is, the owner offers to become bound to pay if the agent procures a purchaser. As Judge Felts points out, a good many of the older decisions were to the effect that such an offer could be revoked any time before the acceptance was complete--i.e., any time before the offeree-broker procured a purchaser. But a majority of the modern decisions hold that after the offeree-broker has done an appreciable amount of work toward procuring a purchaser, he has virtually an option to complete his acceptance and earn the commission.