McCormick v. Obanion

• Citation: 153 S.W. 267
• Parties: McCORMICK v. OBANION.
• Decision Date: 03 February 1913
• Court: Court of Appeal of Missouri (US)

153 S.W. 267

McCORMICK v. OBANION.

Springfield Court of Appeals. Missouri.

February 3, 1913.

1. BROKERS (§ 54)—RIGHT TO COMMISSIONS.

Unless a broker produces a purchaser ready, willing, and able to purchase at the exact price and terms imposed by the owner, the latter may refuse to sell.

2. PAYMENT (§ 9)—"PAYMENT" IN MONEY— NECESSITY.

While payment ordinarily means payment in money, and the payee might insist upon such payment, anything of value, upon which the parties agree, may be accepted in payment of a debt.

3. BROKERS (§ 57)—SALES—VARIANCE FROM ORIGINAL TERMS.

An owner, who consummates a sale to a purchaser produced by the broker, is liable for the commissions, though he voluntarily varies the original terms imposed on the broker, especially where the owner, without insisting on the original terms, which required payment in cash by the purchaser, permitted deferred payments that the purchaser suggested.

4. BROKERS (§ 82)—ACTIONS FOR COMMISSIONS—CONSTRUCTION OF PLEADINGS.

An allegation of the petition, in an action for commissions for procuring a purchaser for real estate, that defendant agreed that, if plaintiff could procure a purchaser, he would pay him all over $6,000 for which the property sold, and that plaintiff found a purchaser at $6,800 would include a sale either wholly or partly for cash.

5. CONTRACTS (§ 346)—ACTION—PLEADING.

If an original contract is modified by a subsequent agreement, plaintiff should ground his action on the contract as modified, and not on the original contract.

6. BROKERS (§ 48) — ACTIONS FOR COMMISSIONS.

The gist of an action for commissions for procuring a purchaser for realty is the finding of a purchaser and the making of the sale at the agreed price.

7. PLEADING (§ 398)—VARIANCE—EFFECT.

Since an allegation of the petition, in a broker's action for commissions, that defendant agreed, if plaintiff would procure a purchaser, he would pay him all over $6,000 for which the farm sold, and that he found a purchaser at $6,800, alleged an agreement for sale either wholly or partly in cash, proof that only a part of the price was paid in cash was not a fatal variance.

8. BROKERS (§ 73)—COMMISSIONS—RIGHT.

One who had no contract with the owner to sell property, and did not look to him for any payment, but merely arranged to divide the commissions with another broker also authorized to sell, was not entitled to any commission from the owner, so that he was not a proper party to an action for commissions.

9. PRINCIPAL AND SURETY (§ 183)—RECOVERY BY SURETY.

A surety on a note cannot recover of the principal until he first pays the surety debt.

Appeal from Circuit Court, Lawrence County; Carr McNatt, Judge.

Action by C. C. McCormick against J. E. Obanion, which defendant counterclaimed. From a judgment for plaintiff, defendant appeals. Affirmed.

W. B. Skinner, of Mt. Vernon, and McNatt & McNatt, of Aurora, for appellant. H. H. Bloss, of Aurora, for respondent.

STURGIS, J.

This is an action by the plaintiff, as a real estate broker, for his commission for selling the defendant's farm. The plaintiff recovered in the trial court, and the case is here on appeal.

The petition, after stating that plaintiff was engaged in the real estate business, and that defendant was the owner of the farm in question, charges as follows: "That on the ____ day of June, 1911, he entered into a contract with the defendant, not in writing, whereby it was agreed that, if the plaintiff would procure a purchaser for the defendant's farm, which was located about four miles south of the city of Aurora, in Barry county, Mo., that he (the defendant) would pay the plaintiff all that said farm sold for over and above the sum of $6,000. That, after the making of said contract, the plaintiff immediately went to work to secure a purchaser for said farm, and who purchased the same at the agreed price and sum of $6,800, whereby there became due from the defendant to this plaintiff the sum of $800, which sum is now due and owing by the defendant to the plaintiff, and payment thereof has been refused by the defendant, though he has been requested to pay the same to the plaintiff."

The facts in regard to the transaction are about these: The plaintiff was engaged in the real estate business at Aurora, Mo.; and the defendant was the owner of a farm some three or four miles south of that town in Barry county. The plaintiff's version of the contract, with reference to the sale of the land, is that he met the defendant in Aurora, Mo., and that defendant listed the farm with him for sale at $6,000. After listing the property, plaintiff asked defendant about the commission, and defendant said that he would not pay a commission, but would give plaintiff all over $6,000 he could sell the farm for. With reference to this matter, the defendant testified that, on meeting the plaintiff at Aurora, plaintiff asked him to give him a chance to sell his farm, and defendant replied, "All right, sell it. I will give you a commission." Plaintiff then asked, "What is the least money it will take to buy your farm?" Defendant replied, "I will take $6,000 clear cash money for the place." "I meant for him to sell the place and leave me $6,000 clear cash after the expenses were all paid." After this arrangement was made, the plaintiff took one Webbena, whose home was in Iowa, and showed him defendant's farm with the view of selling it to him. They met the defendant at his farm; and, with reference to what then took place, the defendant testified: "It went on then until he brought a buyer out there for me; brought Mr. Webbena and his wife, and looked over the place, and he praised the place up to them pretty high, and they could not agree for some time, and they did finally agree, so they told me, and agreed on $6,800 in notes; three years after, some of them, one of them to be paid each year. Then he (plaintiff) called me to one side and said, `We will sell your place that way.' I studied a few minutes, and I considered this is necessary interest, and I thought this $800 will be his commission." Defendant further explained that he understood that the $6,800 was to be paid $100 cash, $400 on the 15th day of November, and $2,800 on January 12th following; and that, at the time of this last payment, he was to make a deed to the farm, deliver possession of it, and take notes, secured by deed of trust, for the balance of the purchase money. On further examination, defendant admitted that he agreed to sell his farm in this way and on these terms.

By agreement between the parties, they met at an office in Aurora that same evening, when and where they drew up and signed the following contract: "Aurora, Mo. June 7, 1911. This evidences a contract made and entered into the day and year above mentioned, by and between J. E. Obanion, of Barry county, Mo., party of the first part, and Fred Webbena, Martelle, Iowa, party of the second part, which provides as follows, to wit: For and in consideration of the sum of $6,800.00 (sixty-eight hundred dollars) to be paid by the party of the second part as herein after provided, said first party hereby agrees to bargain, sell, and convey to and hereby obligates himself to bargain, sell, and convey to said second party, the following described real estate being situated in Barry county, Mo., to wit: The north half of the southeast quarter, and the southwest quarter of the northeast quarter of section number one, township number twenty-five, and range number twenty-six, also the northwest quarter of the southwest quarter of section six, township twenty-five, range 25 west, of the Fifth principal meridian, all in Barry county, Mo. And in consideration of the obligation on the part of the first party the said second party hereby obligates himself to pay said first party the sum of sixty-eight hundred dollars, in manner and form as follows, to wit: One hundred dollars cash upon the execution of this contract, four hundred dollars to be paid November fifteenth, 1911, for which a promissory note is to be made, twenty-eight hundred dollars January the twelfth, 1912, at which latter date the party of the first part is to convey said land by good and sufficient warranty deed to said second party and to deliver to him the possession of said real estate. And the balance of said purchase money, being $3,500.00, is to be evidenced by four promissory notes, to be executed by said second party in the respective sums of $875.00. The first of said notes to fall due November 15th, 1912, and one each year thereafter, all of said notes to bear interest at the rate of 6 per cent. per annum, said interest to be paid annually, and the said notes to be secured by a trust deed in the usual Mo. form on the real estate conveyed, said notes and deeds to be executed at the time of said warranty deed. In evidence of the foregoing agreement the said parties have hereunto subscribed their names, the day and year first aforesaid. J. E. Obanian [Seal.] Fred Webbena [Seal.] Witness: C. C. McCormick. A. M. Davis."

On the making of this contract, it seems that the $100 in cash was paid, and the note executed for the $400 to be paid November 15, 1911, and also the note for the $2,800 due January 12, 1912, which were afterwards paid when due. After this was done, the plaintiff said to the defendant that "there is about $800 of this coming to us," and the defendant replied, "Gentlemen, aren't you a little too fast. I was to have $6,000 in cash." The evidence then shows that some effort was made to sell the notes for cash, but without avail. Nothing was done further at that time about the commission. The defendant then made a deed to the farm to the purchaser, and took his notes for the balance of the purchase money, secured by deed of trust on the land, as provided in the contract. At the time this suit was brought, the defendant had received $3,300 of the purchase money, had executed the deed to the purchaser and delivered to...