Dodge v. Childers
| Decision Date | 09 December 1912 |
| Citation | 151 S.W. 749,167 Mo.App. 448 |
| Parties | THOMAS A. DODGE, Respondent v. STEPHEN L. CHILDERS, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Sullivan Circuit Court.--Hon. Fred Lamb, Judge.
AFFIRMED.
Judgment affirmed.
John W Bingham, Earl F. Nelson and W. H. Childers for appellant.
D. M Wilson and John W. Clapp for respondent.
--Plaintiff sued to recover a commission for services performed in the sale of a farm owned by defendant in Sullivan county. The petition states that in the month of October, 1910, defendant
The principal defenses interposed by the answer are, first, that plaintiff is not entitled to maintain the action as an individual plaintiff for the reason that he was not employed in that capacity but as a member of a partnership and, second, that defendant revoked the agency of the partnership before a purchaser ready, willing and able to purchase the farm on the terms proposed had been procured.
A reply in the nature of a general traverse of these affirmative defenses was filed by plaintiff and the issues raised by the pleadings were tried and submitted to a jury. A verdict for defendant was returned and in due time plaintiff filed a motion for a new trial which alleged errors in the rulings on questions of evidence and in the instructions given the jury and further alleged that the verdict was against the weight of the evidence. The court sustained the motion and granted a new trial but failed to state the ground of the ruling in the order. Defendant appealed.
Plaintiff is the owner and publisher of a newspaper in Milan, the county seat of Sullivan county. Defendant owned a farm of 700 acres six or seven miles from Milan. Sometime before the events in controversy he had removed to Oklahoma and resided on a farm in the vicinity of Helena in Alfalfa county. He wished to sell his farm in Sullivan county and visited Milan in October, 1910, partly for the purpose of effecting a sale. He had employed his brother, W. H. Childers, a lawyer in Milan as his agent but no purchaser had been found. During the visit to Milan he had an interview with plaintiff in which, according to the testimony of the latter, he agreed to employ plaintiff to advertise the farm and agreed that if a purchaser should be procured by such means who would buy the farm at $ 47.50 per acre to pay plaintiff a commission of fifty cents per acre, and if a higher price should be obtained, to pay an additional commission equal to one-half the excess of the purchase price over $ 47.50 per acre. The agency of W. H. Childers was not revoked and it was agreed that plaintiff should turn over to him the answers received by plaintiff to the advertisements and Childers should, thereafter, conduct the negotiations with prospective buyers for which service he should receive a commission from defendant equal to that of plaintiff in the event their combined efforts produced a purchaser.
The evidence of defendant contradicts that of plaintiff only as to the details of the employment of the latter. The fact that plaintiff's services were enlisted is not disputed but defendant says he employed his brother to sell the farm at the price stated, agreed to give him a commission of one dollar per acre if he procured a purchaser on the terms proposed, and that plaintiff was employed to assist his brother and was to share his brother's commission in case their joint efforts proved successful. Neither party claims that plaintiff was to receive a commission if his services in advertising the farm did not procure a purchaser and as we understand defendant's version of the tripartite agreement, W. H. Childers would have been entitled to receive the full commission had he procured a purchaser without the aid of plaintiff's services in advertising the farm and was required to share the commission with plaintiff only in the event of the purchaser being procured through the medium of plaintiff's services.
Before proceeding further with the statement of the facts of the case we shall pause to dispose of the contention of defendant that plaintiff was a partner of W. H. Childers and therefore, cannot maintain this action which is prosecuted for the enforcement of an individual demand. In the instructions to the jury given at the request of defendant, the learned trial judge treated the question of partnership or no partnership as involving an issue of fact and authorized the jury to return a verdict for defendant on the hypothesis presented by defendant's evidence relating to that issue. We think this was an erroneous view to take of the evidence. The mere fact, if it be a fact, that plaintiff (if his services proved effective), was to share the commission with W. H. Childers, is not conclusive evidence of a partnership agreement. Plaintiff was employed to render a special service and his employment was merely auxiliary to that of Childers. The agency of the latter was more general, of a wider scope, and was accorded rights in which the lesser agency had no participation. There was no mutual agreement between plaintiff and Childers to share all the profits that might be realized from the subject matter of the agency of the latter but only such profits as might accrue from plaintiff's service. Without an agreement to share the profits derived from both sources the contract lacked a fundamental element of...
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