Coffman v. Dyas Realty Company
| Decision Date | 16 July 1913 |
| Parties | J. W. COFFMAN, Respondent v. DYAS REALTY COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Hugo Muench, Judge.
AFFIRMED.
Judgment affirmed.
R. P. & C. B. Williams for appellant.
(1) The evidence offered by the plaintiff was insufficient to justify the submission of the case to the jury as to the McMahon property. Gould v. St. John, 207 Mo. 619; Sallee v. McMurry, 113 Mo.App. 264; Crain v. Miles, 134 S.W. 55. (2) There was no evidence sufficient to warrant a submission of the case to the jury, that plaintiff, by any efforts or exertion on his part, induced a sale of the Schneider property to McClelland. Sallee v. McMurry, 113 Mo.App. 264; Crain v. Miles, 134 S.W. 55; Gellatt v. Ridge, 117 Mo. 553; Tyler v Parr, 52 Mo. 249. (3) The evidence is undisputed that plaintiff undertook to find a purchaser for the Schneider property, and it was this service that the defendant engaged him to perform. It was, therefore, error for the court to instruct the jury that plaintiff was entitled to recover if he assisted in effecting the sale. Russell v. Poor, 133 Mo.App. 723. (4) The evidence is undisputed that McClelland, the person alleged to have been furnished by plaintiff, simply offered to take an option on the property or to enter into a conditional contract of purchase, and this was not a compliance with plaintiff's undertaking. Zeidler v. Walker, 41 Mo.App. 118; Hayden v Grillo, 26 Mo.App. 292; Hayden v. Grillo, 35 Mo.App. 647; Mason v. Small, 130 Mo.App. 249; Yoder v. White, 75 Mo.App. 155; Chipley v Leath, 60 Mo.App. 120; Lawrence v. Rhodes, 118 Ill. 96; Stegler v. Sergeant, 68 A. (N. J.) 1106; Brown v. Keegan, 32 Colo. 463; Runyan v. Brock, 57 N. J. Law, 120; Harrison v. Fisher, 82 Mich. 208; Fox v. Nargo, 32 Colo. 203; Walker on the Law of Real Estate Agents, sec. 85. (5) The second count of the petition is bottomed upon a sale of the Schneider property to McClelland, or that McClelland was ready, willing and able to purchase the property. It was, therefore, error for the court to admit evidence of the sale of that property by the defendant to Numes and the price at which said sale was made. Hayden v. Grillo, 35 Mo.App. 647; Zeidler v. Walker, 41 Mo.App. 432; Hayden v. Grillo, 26 Mo.App. 223. (6) There was no evidence offered by plaintiff that McClelland was financially able to purchase the Schneider property, and the burden of proof as to this was on the plaintiff. Zeidler v. Walker, 41 Mo.App. 432; Hayden v. Grillo, 26 Mo.App. 223; Hayden v. Grillo, 35 Mo.App. 627. (7) Instruction No. 2 is clearly erroneous because it told the jury that plaintiff could recover if McClelland "conditionally purchased" the property. Hayden v. Grillo, 35 Mo.App. 223; Zeidler v. Walker, 41 Mo.App. 432; see also the authorities cited under point 4. (8) When the court gives two conflicting instructions upon the same point, one correctly and the other incorrectly declaring the law, it cannot be said by which the jury was guided, and this is sufficient to justify a new trial. Russell v. Poor, 133 Mo.App. 723; Shepard v. St. Louis, 189 Mo.App. 362; Ridpath v. Lawrence, 42 Mo.App. 102; Goodloe v. Railroad, 108 Mo.App. 479; Oil Co. v. Meyer, 74 Mo.App. 447; Timmermann v. Craddock, 70 Mo.App. 638. (9) The contract which plaintiff offered in evidence for the purchase of the Schneider property, shows that the purchaser was only to give $ 20,000, and there could be no commissions earned by the defendant, and plaintiff has no basis for recovery of any damages as to the second count.
Abbott & Edwards for respondent.
(1) The evidence offered by plaintiff was sufficient to justify the submission of the case to the jury as to the McMahon property. Lane v. Cunningham, 153 S.W. 525; Crone v. Trust Co., 85 Mo.App. 607; Goffe v. Gibson, 18 Mo.App. 1. (2) The petition alleges that McClelland deposited earnest money on the Schneider farm; that while said earnest money contract was in full force and effect, defendants sold the Schneider form for McClelland for $ 24,500; that the force and effect of the transfer as set forth, was a consummation of said transaction on the part of McClelland as outlined in the earnest money agreement. Since the sale was consummated, plaintiff is entitled to his commission, and it is immaterial whether McClelland had an option or not, and immaterial whether or not he was ready, able and willing to purchase the property. He did purchase it. 19 Cyc. 253; Glade v. Mining Co., 129 Mo.App. 433. (3) Complaints made with reference to instruction No. 2 are not justified, because appellant fails to treat of the instruction as a whole. The instruction required the jury to find several facts in addition to assisting in inducing McClelland to make the trade, and also required the jury to find not only a conditional purchase, but also an actual consummation of same. (4) The evidence conclusively shows that McClelland paid $ 21,000 for the farm, of which $ 20,000 was the selling price to Schneider and $ 1000 was the profit to defendant.
This is a suit by a real estate agent for his commissions accrued on account of two separate sales of property. Plaintiff recovered and defendant prosecutes the appeal.
Both plaintiff and defendant are engaged in the real estate business--that is, as agents in making sales of real property for other persons. Plaintiff maintains a real estate office in Springfield, Illinois, and induces prospective purchasers to come into Missouri to buy farms. Defendant is an incorporated real estate company in St. Louis, engaged in selling farms as agent for the owner.
The petition is in two counts. The first relates to the sale of property known as the McMahon farm in St. Charles county, Missouri, and the second to the sale of the Schneider farm in the same county. We will first review the arguments pertaining to the case stated in the first count and thereafter consider the questions arising on the second count.
Touching the sale of the McMahon farm, declared upon in the first count, it is conceded that defendant employed plaintiff to solicit buyers and "talk up" the farm. For his services in this behalf, defendant agreed to divide commissions with plaintiff. Defendant's commissions on the sale were to be five per cent of the purchase price in event a sale was made. By defendant's agreement with plaintiff, he was to have two and one-half per cent of this sum, if a purchaser was procured through plaintiff's efforts. Plaintiff employed one R. E. McClelland, a real estate agent of Springfield, Illinois, to co-operate with him in selling the property, and it appears defendant was duly informed of this fact. The evidence for plaintiff tends to prove that his agent, McClelland, called upon one F. D. Nunes and solicited him to buy the McMahon farm. Nunes had recently sold his land near Springfield, Illinois, and was in the market to buy a farm. McClelland described the McMahon farm to Nunes, suggested the neighborhood of its location, and told Nunes that he would buy it if he saw it. He sought to induce Nunes to accompany him to look at the land immediately, but Nunes declined to do so. It is conceded that Nunes had never heard of the McMahon farm before McClelland called his attention to it and urged him to buy it. Two weeks later, Nunes visited St. Louis, called at defendant's office, and purchased the McMahon farm directly through it, for which he paid $ 30,000. It is true Nunes says in his testimony that, though McClelland talked to him about this farm and described it to him in a general way, he was not induced to buy it through the efforts of McClelland, who represented plaintiff in that behalf. Nunes says that, subsequent to his conversation with McClelland, he read defendant's advertisement describing the farm in a Springfield paper and was thus induced to come to St. Louis and make the purchase.
It is argued that the court should have directed a verdict for defendant on this count, for the reason it does not sufficiently appear that plaintiff was the procuring cause of the sale to Nunes, but we are not so persuaded. It is conceded throughout the case that McClelland, who first called Nunes' attention to the farm, which he purchased two weeks later, was the agent of plaintiff and represented him in the interview with Nunes. It appears from the evidence of McClelland and another witness who was present, that he called Nunes' attention to the McMahon farm, described it, told him it was splendid corn and wheat land and that he was certain Nunes would buy it if he would but go and look at it. McClelland informed him, too, of the location of the land in a general way. But Nunes was not feeling well at the time and refused to accompany McClelland to look at the land. Nunes himself admitted on the witness stand that McClelland approached him and urged him to buy some farm in the locality mentioned, but says he did not know it was the McMahon farm. Nunes testified, too, that McClelland said "he would like to show me the land and he told me I would buy it if I seen it." It is true that Mr. Nunes further states that he was induced to visit St. Louis and make the purchase through an advertisement in the Springfield paper describing the farm; but be this as it may, this bit of evidence as well as the remainder given was for the jury. If plaintiff through his agent, McClelland, interested Nunes in the land and he subsequently purchased it because of that fact, there can be no doubt that plaintiff's commission was earned and he is entitled to recover. It is conceded that plaintiff's agent, McClelland, first called the attention of Nunes to the farm, described it, and...
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