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Roberts v. Ross

April 29, 1965

HERBERT J. ROBERTS, APPELLANT,
v.
NORMAN M. ROSS, JR.



Author: Maris

Before MARIS, McLAUGHLIN and FREEDMAN, Circuit Judges.

MARIS, Circuit Judge.

The plaintiff, Herbert J. Roberts, appeals from a judgment entered in the District Court of the Virgin Islands dismissing his action brought to recover the sum of $3,087.50 which he alleged the defendant Norman M. Ross, Jr. promised to pay him for services rendered in producing a buyer for a dwelling house which the defendant had built in St. Thomas. The defendant answered, denying any such promise and, subsequently, with leave of court, he filed an amended answer in which he interposed the special defense of the Statute of Frauds.

On May 21, 1963 the case was tried to the Court. The testimony given at the trial was sharply conflicting. The plaintiff, who was employed by the defendant as a foreman in connection with the construction by the defendant of a dwelling house on Parcel 1-14, Estate St. Joseph and Rosendahl, St. Thomas, testified that in December 1961 the defendant promised him a 5% commission of the sale price if he "sold the house". The plaintiff brought one James Soutter, who was in the market for a home, to see the house and introduced Soutter to the defendant. The plaintiff had quoted $65,000 as the sale price to Soutter. Thereafter, Soutter and the defendant negotiated for the purchase of the house. They agreed upon the price of $61,750.00, an agreement of sale was drawn up on March 5, 1962 and a deed was executed on May 1st. The plaintiff testified that following the sale of the house, the defendant offered to pay him a commission of 2 1/2% of the sale price which he refused and subsequently the defendant offered him a percentage which would have amounted to several hundred dollars which he also refused. The plaintiff, who had left the Virgin Islands in July 1962 for the United States, received a letter from the defendant under date of August 28, 1962 notifying him that the defendant had "laid off all of the crew" including the plaintiff. Then, under date of August 31st, the plaintiff wrote the defendant stating, inter alia, "The thing that bothers me is that you have never mentioned the commission for selling the house."

Soutter, the purchaser, testified that the plaintiff brought him to the house and that Soutter had never discussed the purchase of the property with any real estate broker. When the final price was being discussed with the defendant, Soutter was given the impression that payment of a commission would be made to plaintiff, but he had no idea as to the amount.

The defendant testified that he did not make the plaintiff any offer of a commission or a promise of any amount for bringing about the sale to Soutter and that the first time the plaintiff made a demand for a commission on the sale was in the letter of August 31st. The defendant further testified as follows:

"A. We had one discussion about a commission. I told Herb [the plaintiff] the day before I was going down to sign the contract of sale that I was going to Cox's office the next morning to meet Mr. Soutter and sign it, and at that time he said 'Am I going to get a commission on the house?' and I said 'I don't think so.'

"Q. That was all the discussion?

"A. That was all. He approached me with the idea himself. I could see no reason why he should get a commission. He wasn't a broker. He was an employee of mine. The next day when I talked with Mr. Soutter I asked him about a commission. I said 'Herby expects a commission' and Soutter says 'He does not deserve a commission. He is a friend, he is an employee of yours, and he is not a broker, and I'm not going through a broker, so I see no reason why he should get a commission.'

"Q. And that's why you dropped the price from -

"A. From $65,000 to $61,750."

On December 30, 1963, the trial judge entered an order stating that he had found for the defendant on the issues presented and directing counsel for the defendant within 10 days to file proposed findings of fact, conclusions of law and draft of judgment. Counsel for the plaintiff was given leave within 10 days thereafter to file objections thereto, which he did. On January 14, 1964 the findings of fact, conclusions of law, and judgment prepared and filed by counsel for the defendant were signed by the trial judge without change. It was concluded as a matter of law that "plaintiff has failed to prove by a preponderance of the evidence that the sale of said property by the defendant was procured through the agency of plaintiff", and that "in any event, said alleged promise not being in writing is within the Statute of Frauds." The plaintiff appealed from the judgment entered thereon dismissing his complaint.

The first question with which we are presented is whether the trial judge erred in concluding that the action on the alleged oral promise of the defendant to pay a commission to the plaintiff for his services in procuring a purchaser for the defendant's house was barred by the Statute of Frauds. The conclusion of law prepared by counsel for the defendant and signed by the trial judge does not indicate which statute is relied upon. The defendant in his argument, however, relies in this regard upon 28 V.I.C. ยง 241(a) which provides:

"(a) Except for a lease for a term not exceeding one year, no estate or interest in real property, and no trust or power over or concerning real property, or in any manner relating thereto, can be created, granted, ...


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