Plaintiff appealed. The facts are stated in the Opinion. The uncontradicted testimony of the plaintiff is in December, 1906, the defendant placed in his hands a piece of property to sell at $1,400, with a stipulation that in lieu of commission plaintiff was to have all he could get over $1,400, and that it was further between them that the defendant would not dispose of the property without giving the plaintiff notice; that in February the plaintiff sold the property for $1,500 to a party "ready, able and willing" to pay for it, but, on reporting the sale to defendant, found that the latter had sold the property, 29 January, 1907, to another party for $1,350, without giving the plaintiff any notice.
Upon the above evidence the court charged that the defendant had a right to sell the land and that "the plaintiff would not be entitled to recover $100 — that is, the difference between $1,400 and $1,500 — that he would be entitled to recover the quantum meruit, i. e., such *Page 227 compensation as the jury may find he is entitled to recover for the services he rendered the defendant in attempting to sell the land between the date of the contract and the time (29 January) when the defendant sold it."
This was erroneous. There being a valid express contract, there is no ground for recovery on a quantum meruit. The plaintiff was entitled to recover the stipulated compensation (here $100), if (306) the jury believed the evidence. Reed v. Reed, 82 Pa. St., 420;Phelan v. Gardner, 43 Cal. 306; Doty v. Miller, 43 Barb., 529; Baileyv. Chapman, 41 Mo., 537; Monroe v. Snow, 131 Ill. 136, and numerous cases collected in notes to Beckenridge v. Claridge, 43 L.R.A., 593.
Notice of revocation must be given by the principal to the agent. Mechem Agency, sec. 226. Besides, in this case an express agreement that notice should be given is shown.
If there had been no agreement as to the compensation the plaintiff could have recovered on a quantum meruit for the value of his services in making sale at the price he did, and not merely the value of services in trying to make sale up to 29 January, when the defendant, unknown to plaintiff, actually made sale — the rule which his Honor laid down. That the vendee of the plaintiff was "ready, able, and willing" to comply is fully shown by the fact that the plaintiff, on defendant's failure to comply, bought the land for his vendee from defendant's vendee for $1,500.
Error.