Woolley v. Mears

• Citation: 125 S.W. 1112,226 Mo. 41
• Parties: GEORGE A. C. WOOLLEY and EDWIN S. FISH, Appellants, v. DAVID HENRY MEARS and JOHN D. WOODRUFF, Executors Under Will of MARION V. MEARS, and DAVID H. MEARS
• Decision Date: 01 March 1910
• Court: Missouri Supreme Court

125 S.W. 1112

226 Mo. 41

GEORGE A. C. WOOLLEY and EDWIN S. FISH, Appellants, v. DAVID HENRY MEARS and JOHN D. WOODRUFF, Executors Under Will of MARION V. MEARS, and DAVID H. MEARS

Supreme Court of Missouri, First Division

March 1, 1910

Appeal from St. Louis City Circuit Court. -- Hon. Jesse A. McDonald Judge.

Reversed and remanded.

Lubke & Lubke for appellants.

(1) A real estate broker, who has found a purchaser for his principal's property with whom the principal makes a contract to sell the property and who is ready, willing and able to carry out the same, is entitled to reasonable compensation for his services, in the event no price has been agreed on. Gelatt v. Ridge, 117 Mo. 553; Grether v. McCormick, 79 Mo.App. 325; Finley v. Dyer, 79 Mo.App. 604; Lipscomb v. Russ, 81 Mo.App. 53; Sallee v. McMurry, 113 Mo.App. 253. (2) The act of the Legislature approved March 28, 1903, Laws 1903, p. 161 making it a misdemeanor in cities of three hundred thousand inhabitants or more to offer for sale any real property without the written authority of the owner of the property or of his attorney in fact, or of a person who has made a written contract for the purchase of such property, and prescribing the punishment therefor, is void, because in violation (a) of the Constitution of the United States, art 1, sec. 10, and of sec. 1 of the Fourteenth Amendment thereto; and (b) of the Constitution of this State, art. 2, sec. 15, and art. 4, sec. 53. Fisher Co. v. Woods, 187 N.Y. 90; Grossman v. Caminez, 79 A.D. 15; Cody v. Dempsey, 86 A.D. 335; State v. Walsh, 136 Mo. 400; State v. Thomas, 138 Mo. 100; State v. Julow, 129 Mo. 163; In re Flukes, 157 Mo. 125; State ex rel. v. Turner, 210 Mo. 77; State ex rel. v. Messerly, 198 Mo. 351; Henderson v. Koenig, 168 Mo. 375; State v. Buchart, 144 Mo. 83; State v. Grannemann, 132 Mo. 326; Murnane v. St. Louis, 123 Mo. 479; State ex rel. v. Herrmann, 75 Mo. 340; State ex rel. v. County Court, 89 Mo. 237. (3) Even though this Act of 1903 be held valid, plaintiffs were nevertheless entitled to recover against the defendants, because defendants ratified plaintiffs' acts and received the benefit of their services. Trust Co. v. Niggemann, 119 Mo.App. 56; Tooker v. Duckworth, 107 Mo.App. 231; Smyth v. Hanson, 61 Mo.App. 285; Prince v. Baptist Church, 20 Mo.App. 332; Prietto v. Lewis, 11 Mo.App. 600; Whitely v. Terry, 83 A.D. 197.

W. H. Allen for respondents.

(1) A constitutional question must be timely raised, in some appropriate manner; it is too late to raise it in the motion for a new trial, or in arrest. Lohmeyer v. Cordage, 214 Mo. 685; State v. Gamma, 215 Mo. 100; Hartzler v. Railroad, 218 Mo. 562; State v. Boehler, 220 Mo. 4. And it is too late to raise it for the first time in the circuit court, where the case comes there on appeal from a justice of the peace. In re Estate of Strom, 213 Mo. 1. (2) Under the act approved March 28, 1903, Laws 1903, p. 161, a real estate agent who procures a purchaser for real estate placed in his hands for sale, in violation of the terms of the act, cannot recover a commission from the owner for such sale. Rothwell v. Gibson, 121 Mo.App. 279; Filey v. Handley, 121 Mo.App. 358; Charles v. Arthur, 84 N.Y.S. 284; Kronberger v. Quinn, 86 N.Y.S. 139; Downing v. Ringer, 7 Mo. 585; Amusement Co. v. Park Co., 192 Mo. 404; Bick v. Seal, 45 Mo.App. 475; Tandy v. Commission Co., 113 Mo.App. 409. (3) There is no such thing in law as the ratification of an act or transaction, which at the time of its performance was prohibited by statute. The parties cannot legalize that which the law has declared illegal. Even if a new contract be made, yet if it grows immediately out of the illegal transaction, it is as much tainted by it as the original contract. Bick v. Seal, 45 Mo.App. 480; Kronberger v. Quinn, 86 N.Y.S. 139; Buckingham v. Fitch, 18 Mo.App. 91; Woolfolk v. Duncan, 80 Mo.App. 421; Amusement Co. v. Park Co., 192 Mo. 404; Tandy v. Commission Co., 113 Mo.App. 409. (4) A general allegation that a statute is unconstitutional is not sufficient. The particular article and section of the State or Federal Constitution which it violates must be specifically and distinctly pointed out, and none other can be considered. Lohmeyer v. Cordage Co., 214 Mo. 688; Ash v. Independence, 169 Mo. 77; State to use v. Lumber Co., 170 Mo. 7; Hardin v. Carthage, 171 Mo. 442. (5) Every presumption is to be indulged in favor of the validity of an act; and courts will not declare a statute to be unconstitutional unless its violation of the Constitution is so manifest as to leave no room for reasonable doubt. State ex rel. v. Fort, 210 Mo. 526; State v. Tower, 185 Mo. 102; Ex parte Loring, 178 Mo. 194; State v. Gregory, 170 Mo. 598; State ex rel. v. Yancey, 123 Mo. 402. (6) The above-mentioned act of the Legislature approved March 28, 1903, Laws 1903, p. 161, is not unconstitutional, as being violative of the Constitution of Missouri, art. 4, sec. 53. State ex rel. v. Wofford, 121 Mo. 69; Ex parte Lucas, 160 Mo. 235; Owen v. Bear, 154 Mo. 415; State v. Tower, 185 Mo. 87; State v. Layton, 160 Mo. 498; State v. Haynes, 88 Mo. 344; Haynes v. Mo., 120 U.S. 68; Kansas City v. Segmiller, 151 Mo. 189; State v. Sibley, 131 Mo. 519; State v. Yancey, 123 Mo. 391; Dunne v. Kansas City, 131 Mo. 1.

OPINION

WOODSON, J.

This suit was begun before a justice of the peace in the city of St. Louis, to recover the sum of $ 175, commissions claimed to be due the plaintiffs from the defendants for procuring a purchaser for real estate in the city of St. Louis, belonging to Marion V. Mears, one of the defendants. The trial before the justice resulted in a judgment in favor of the defendants, from which plaintiffs appealed to the circuit court. Shortly after the appeal was perfected, Marion V. Mears died, and the cause was duly revived as to her against her executors. A trial de novo was had in the circuit court, which also resulted in a judgment in favor of the defendants. From this judgment plaintiffs duly appealed the cause to this court.

The evidence showed that plaintiffs were real estate agents doing business in the city of St. Louis, and that some two years prior to the date of the trial they solicited defendants to let them undertake to sell said real estate, which was located in said city, for the sum of $ 7000 net. But being unable to sell said property for that sum, they, without authority, made a contract to sell the same to F. H. Kenthan for the price of $ 6800, and accepted $ 100 earnest money from him to bind the bargain, subject, however, to the approval of defendants. Upon the submission of this contract to defendants for approval, they declined to accept it, but they again agreed to take $ 7000 for the property; and at the same time the contract of sale before mentioned was amended by changing the figures therein stated, the amount of the purchase, $ 6800, to $ 7000. The contract in this changed condition was presented to the purchaser, Kenthan, who assented to the change, and, on April 17, 1905, indorsed on the back thereof his acceptance of the same.

The evidence for plaintiffs tended to show that during the time the sale to Kenthan was being negotiated, no mention was made by plaintiffs or defendants as to the compensation to be paid to the former by the latter for their services performed in the premises. While upon the other hand, the evidence for defendants tended to show that they were to receive $ 7000 net as the purchase price of the property. The usual compensation paid to real estate agents for their services for making sales of this class of property in that city was, at the time mentioned, two and one-half per cent of the purchase price.

It was admitted that the purchaser was ready, able and willing to carry out the terms of the contract, but the vendors declined to convey the property to him. Also that plaintiffs had no written authority from defendants, nor from any one authorized to act for them, to sell said property.

The foregoing was substantially all of the evidence introduced at the trial in the circuit court.

At the conclusion of the introduction of all the evidence in the cause, the defendants asked and the court gave the following declarations of law:

"1. The court declares the law to be that, under the pleadings and evidence in this case, plaintiffs cannot recover.

"2. The court declares the law to be that unless the plaintiffs herein had written authority of the owner of the real property in question, or of his attorney-in-fact appointed in writing, or of a person who has made a written contract for the purchase of such property, with the owner thereof, to offer said property for sale, plaintiffs cannot recover commissions for procuring a purchaser for said property, and judgment herein must be for the defendants."

To which action of the court in giving said declarations, and each of them, the plaintiffs duly objected and saved their exceptions.

The court thereupon in passing upon the case made and filed the following memorandum of its decision:

"The plaintiffs herein having failed to procure the authority which the statute contemplates to offer for sale the defendants' real estate, they cannot recover the commission which the evidence in this case shows them to have earned. Judgment for the defendants."

The motion for a new trial assigned, among others, the following reasons therefor:

"Third. Because the court erred in giving improper and illegal instructions asked by the defendant.

"Fourth. Because the finding and judgment of the court is against the evidence and weight thereof.

"Fifth. Because the finding of the court is against the law and the evidence, and should have been in favor of the plaintiffs and against the defendants.

"Sixth. Because the ruling...