Lombard v. Sills

• Decision Date: 19 May 1913
• Citation: 157 S.W. 93,170 Mo.App. 555
• Parties: J. P. LOMBARD, Appellant, v. ALBERT M. SILLS, et al., Respondents
• Court: Kansas Court of Appeals

157 S.W. 93

170 Mo.App. 555

J. P. LOMBARD, Appellant, v. ALBERT M. SILLS, et al., Respondents

Court of Appeals of Missouri, Kansas City

May 19, 1913

Appeal from Jackson Circuit Court.--Hon. James E. Goodrich, Judge.

Judgment affirmed.

McCune Harding, Brown & Murphy for appellant.

The court erred in giving instruction 5 on behalf of the defendants, which instruction was a peremptory instruction to the jury to find for the defendants on the counterclaim. Printz v. Miller, 233 Mo. 47; Hayden v Grillo, 35 Mo.App. 647; Love v. Owens, 31 Mo.App. 510; Gerhart v. Peck, 42 Mo.App. 651; Chipley v. Leathe, 60 Mo.App. 20; Brauckman v Leighton, 60 Mo.App. 42; Goldsberry v. Eades, 161 Mo.App. 8.

Ball & Ryland for respondents.

(1) The special contract entitled defendants to the commission. (2) Irrespective of the special contract, defendants were entitled to the commission as a matter of law on the facts proven. 19 Cyc. 243, 270, 271; Rice v. Mays, 107 Mass. 550; Moore v. Irwin, 20 L. R. A. (U.S.) 1168; s. c. 116 S.W. 662; Alt v. Doscher, 102 A.D. 344; s. c. 92 N.Y.S. 439, affirmed 186 N.Y. 566, 79 N.E. 1100; Brady v. Foster, 72 A.D. 416; s. c. 75 N.Y.S. 944; Leuscher v. Patrick, 103 S.W. (Tex. Civ. App.), 664; Wright v. Brown, 68 Mo.App. 577.

OPINION

ELLISON, P. J.

--Plaintiff's action is to recover five hundred dollars, the amount of a deposit left with defendants in a proposed real estate deal. Defendants are partners in the real estate brokerage business and they filed a counterclaim for the same amount as commission alleged to be due them from plaintiff on account of such deal. The deposit was conceded and the controversy is over plaintiff's liability to defendants for a commission. The trial court considered that the case made entitled defendants to a commission, and therefore peremptorily directed a verdict for plaintiff for the deposit and for defendants, in the same amount, on their counterclaim for commission; the result being that plaintiff was held to be liable for the commission, which, being of the same amount as the deposit in defendants' hands, left the findings neutralizing or offsetting each other. Plaintiff appealed. The question presented is whether plaintiff is liable to defendants for a commission.

It seems that plaintiff engaged defendants to procure an exchange of certain of his real property, and that defendants procured W. J. Lentell, with whom plaintiff personally entered into a written contract of exchange. The contract provided that the property of each party should be free of incumbrances save those mentioned. As the case now presents itself, these need not be set out or be referred to further.

The effect of the finding that plaintiff was entitled to recover the amount of his deposit from defendants is that the deal failed of consummation on account of Lentell, and not plaintiff, and the sole question is as to defendant's right to a commission for procuring Lentell, who entered into the contract with plaintiff. The ground of the latter's avoidance of his agreement to pay the commission is that Lentell was not financially able to respond in damages to plaintiff for failure to perform. The contract did not, in terms, condition defendants' right to a commission on Lentell's financial ability. It set out the agreement in detail between plaintiff and Lentell, and that plaintiff agreed to pay defendants, "his agents, $ 500 as commission in the transaction."

But plaintiff insists that this provision must be considered in the light of the law, as determined in this State, allowing a real estate broker a commission only when he produces a man who is able to make the purchase or respond in damages if he fails to do so.

It is the law, stated in a great number of cases, that it is requisite to the earning of a commission that the purchaser produced to the vendor principal by the agent, must be one who is financially capable of making the purchase, or to respond in damages to the vendor if he fails to do so. [Goldsberry v. Eades, 161 Mo.App. 8, 142 S.W. 1080; Hayden v. Grillo, 35 Mo.App. 647; Love v. Owens, 31 Mo.App. 501, 510; Gerhart v. Peck, 42 Mo.App. 644, 651; Brauckman v. Leighton, 60 Mo.App. 38, 42; Chipley v. Leathe, 60 Mo.App. 15, 20.]

But in these cases, and others of like character, there is nothing said which prevents the vendor from accepting the purchaser produced, as filling the agent's contract, and entering into a contract of sale with him. The question is an important one and received careful consideration by the trial judge, who stated that he had not found a case in this State in which the matter had been discussed; the nearest approach, he stated, was in Wright v. Brown, 68 Mo.App. 577, 583, where, in the course of the opinion, it is said that "when the purchaser is accepted and the contract executed, the principal cannot be heard to say when the agent calls on him for compensation, that, 'You did not produce a purchaser who was financially able to perform the contract and respond in damages in case of nonperformance by him, and therefore I owe you nothing for your services.'" But the trial judge remarked that this statement was somewhat clouded by the further observation in the opinion that, "when the purchaser in a case of this kind, has performed (italics ours) the contract, the question of his primary responsibility is eliminated from the controversy."

There is ample authority for the position that the broker "is entitled to his commission upon the execution of a contract between the vendor and...