Justia Federal District Court Opinions

This is an appeal by the defendants, Tomlinson I. Moseley, Key Management Corporation and Oxford Corporation, from a judgment entered in favor of the plaintiff Sam Pivar in an action brought in the District Court of the Virgin Islands to recover a broker's commission on a sale of a tract of land located in Estate Judith's Fancy, St. Croix. The case was tried to the court, without a jury, and the plaintiff was awarded a commission in the sum of $49,130 together with interest thereon, plus an attorney's fee and costs.

The opinion filed by the trial judge, Chief Judge Christian, in the district court, Pivar v. Moseley et al., 1971, V.I., fully sets forth the background facts which he found had led to the culmination of the transaction here involved, and they need not be repeated here. For the purpose of this discussion, it is sufficient to say that in November 1968 one Richard M. Kimbrough called at Pivar's real estate office inquiring about the availability of land for purchase. He had come to the Virgin Islands from Michigan with two associates, Rockwell T. Gust and E. Keigh Owens, to acquire land for development but had met with disappointments and his associates had returned to Michigan. Pivar showed Kimbrough the tract which was for sale by Moseley; Kimbrough was interested; the following day Kimbrough, Pivar and Moseley met and discussed the sale of the property. Thereafter Kimbrough reported the discussions to Gust and Owens. In May 1969, after a series of negotiations, Hamilton International Corporation, a Michigan corporation in which both Owens and Gust were associated, but in which Kimbrough had no interest, purchased the property here involved, which embraced more land than originally offered and which included a residence belonging to Moseley. The transaction was consummated by the exchange of the stock of two Virgin Islands corporations, Key Management Corporation and Oxford Corporation, which held title to the land, for stock of Hamilton International Corporation. At the time of the sale Moseley was the principal shareholder, president, and a member of the board of directors of both Key Management Corporation and Oxford Corporation. Hamilton International Corporation subsequently agreed to redeem its stock acquired by Moseley in the transaction.

Based on the facts which he found the trial judge concluded that the plaintiff was entitled to a commission on the sale of the property. On this appeal, the defendants contend that the evidence does not support the findings.

In considering the defendants' contention we bear in mind the wellestablished principle which is the rule in the Virgin Islands that an agent must show that he was the effective or procuring cause in producing the result for which he seeks compensation, and that whether or not his efforts had such a substantial effect that he should be compensated for them depends upon the particular facts and circumstances of each case and is a question of fact to be resolved by the trier of fact. Restatement, Agency 2d, Sec. 448 and Comments a and c;¹ White v. Grovier, 1946, 237 Iowa 377, 21 N.W.2d 769; Hill v. Capps, 1964, 248 Miss. 601, 160 So.2d 186; 12 Am.Jur.2d, Brokers, Secs. 190, 191. And see Hourston v. Harlvan, Inc., 3 Cir., 1972, 457 F.2d 1105. A finding of fact on this question, as on any other, may not be set aside on appeal unless clearly erroneous. Rule 52(a) F.R.Civ.P.