Glade v. Ford

• Decision Date: 25 May 1908
• Citation: 111 S.W. 135,131 Mo.App. 164
• Parties: GEORGE H. GLADE et al., Appellants, v. A. P. FORD, Respondent
• Court: Kansas Court of Appeals

111 S.W. 135

131 Mo.App. 164

GEORGE H. GLADE et al., Appellants, v. A. P. FORD, Respondent

Court of Appeals of Missouri, Kansas City

May 25, 1908

Appeal from Jasper Circuit Court.--Hon. Howard Gray, Judge.

AFFIRMED.

Judgment affirmed.

McAntire & Scott for appellants.

(1) The defendant was not released from his original liability to pay the $ 1,000 for the reason that there was no consideration for the extension of time. Harburg v. Kumpf, 151 Mo 16. (2) Where a defendant by his own negligence fails to make efforts to collect the notes due and by his own act failed he could not by such negligence prejudice plaintiff's rights and their right would not have to depend upon the collection of the money from the purchasers, for the reason that Ford by his own act after said notes became due, permitted attachments to remain upon the property and did not dissolve the said attachments and failed to bring suit to collect his money. Webster v. Myers, 52 Mo.App. 340; Tuerman v. Stevens, 83 Mo. 218; Croker v. Holmes, 65 Me. 195. (3) Even though the court should hold that in the construction of this contract that there was a consideration for it, it could be only held that plaintiffs were bound to wait a reasonable length of time and they had waited from 1903 until 1905. Such being the case we claim that under the authorities quoted hereunder that the court should have found a verdict for the plaintiffs. Crocker v. Holmes, 65 Me. 195, 20 Am. Rep. 687; Noyes v. Barnard, 63 F 782; Nuntz v. Danter, 19 Wall. 560; Ubsdell v Cunningham, 22 Mo. 124; Walker v. Woollen, 54 Ind. 164; Whiting v. Grey, 11 L. R. A. 526; Howe v. Bristow, 65 Mo.App. 628; Dwolfe v. French, 51 Me. 42; Sears v. Wright, 24 Mo. 278. (5) The court's finding was inconsistent with the declarations of law which he gave.

Cole, Burnett & Williams for respondent.

(1) The agreement as expressed in the written instrument sued on in this case was made before the sale on the leasehold interest by Ford to Bruner and Hedrick, and unless the arrangement had been made before the sale was consummated, the sale would not have been made, and plaintiffs cannot recover in this case until payment has been made to defendant, Ford. (2) A note given in part payment of real estate was made to become due on a given date or when plaintiffs get possession of the entire tract. An action brought before he obtained such possession was premature, and whether he had possession is a question for the jury. Bank v. Porterfield, 70 Mo.App. 573. (3) From the agreement between the plaintiffs and defendant no payment was to be made, by defendant to plaintiffs until payment had been made by Bruner and Hedrick to defendant. As soon as Bruner and Hedrick pay defendant then he becomes liable to plaintiffs, and until such payment is made by Bruner and Hedrick, Ford owes plaintiffs nothing. (4) The court's finding was not inconsistent with the declarations of law which he gave.

OPINION

JOHNSON, J.

Plaintiffs, real estate agents, sued to recover a commission alleged to be due them from defendant. A jury being waived by the parties, trial before the court resulted in a judgment for defendant on the finding that the action was begun prematurely. Plaintiffs appealed.

There is no dispute over the fact that defendant employed plaintiffs to procure a purchaser for a mine he owned in Jasper county at the price of $ 30,000, and agreed to pay them a commission of $ 2,000 for such services. Nor is it denied that plaintiffs found purchasers in the persons of a Mr. Bruner and a Mr. Hedrick to whom defendant sold and conveyed the property on February 25, 1903, for $ 30,000; that defendant accepted a down payment on the purchase price of $ 15,000 and the unsecured promissory notes of Bruner and Hedrick for the remainder, due in four, five and six months, and that none of those notes nor any part of them has been paid. And it is agreed that the following written instrument was signed by plaintiffs and delivered to defendant:

"Joplin, Mo., Feb. 25th, 1903.

"Received of A. P. Ford One Thousand ($ 1,000) Dollars on account of commission in sale of Tennessee mine, balance one thousand ($ 1,000) Dollars to be paid as follows: $ 333.33 in four months upon the payment of a certain note of $ 5,000 from Bruner & Hedrick to A. P. Ford and $ 333.33 in five months when another note of same amount as above is paid, and $ 333.33 in six months when another $ 5,000 note is paid. In the event of the payment of the above notes before maturity then the commission is due and payable. One-half of the above amounts to J. E. Tedford and one-half to Geo. H. Glade."

Plaintiffs admit the payment of $ 1,000 recited in the instrument and this suit is for the recovery of the three deferred payments mentioned therein which aggregate $ 1,000 and are still unpaid.

The facts in controversy thus may be stated: It is the contention of plaintiffs, supported by evidence, that by the terms of their contract of employment with defendant, they were entitled to receive the whole of the commission when the sale was closed, regardless of whether or not defendant sold the property partly on the credit of the purchasers; that they agreed to defer the payment of half of their commission as a matter of accommodation to defendant who requested it as a favor to him, and that the agreement was made and the instrument we have copied was signed and delivered after the sale had been fully consummated. Further, plaintiffs say that their evidence shows defendant negligently omitted to force the collection of the Bruner and Hedrick notes after they fell due, but they failed to introduce any evidence to the effect that Bruner and Hedrick were solvent or that efforts to collect the notes would have availed anything. From these facts, plaintiffs argue, first, that the agreement for the extension of time for the payment of half their commission is void for the reason that it is unsupported by a consideration and, second, that should the agreement be held to be free from this objection, nevertheless, plaintiffs are entitled to recover because of the fact that reasonable diligence was not employed by defendant to collect the Bruner and Hedrick notes.

On the part of defendant, the evidence is to the effect that when informed during the negotiations preceding the sale that the purchasers required time in which to pay half of the purchase price and would do nothing more than to give their unsecured promissory notes for the deferred payments, defendant refused to deal on such...