Cavender v. Waddingham

Decision Date26 June 1876
Citation2 Mo.App. 551
PartiesJOHN S. CAVENDER et al., Respondents, v. WILLIAM WADDINGHAM, Appellant.
CourtMissouri Court of Appeals

1. When one negotiates through a real estate broker for the purchase of a lot, the transaction, if completed, includes two contracts: one made with the vendor, and another with the broker for his compensation. A suit by the broker is not an attempt to enforce a contract made by defendant with a third party.

2. W employed C. & R. to purchase a lot for him upon certain terms, stipulating that the compensation of the latter was to be deducted from the purchase money going to the vendor, and was in no event to be paid by W. Held, that W. would be liable, nevertheless, to C. & R. for their proper fees, in case of a violation of the contract by W. in refusing to take the property.

3. Where, at the time of making an alleged contract, one of the parties was, by reason of the excessive use of intoxicating liquors, " in such unsound mental condition that he was wholly void of judgment and discretion," no contract, in contemplation of law, was in fact made, and evidence to that effect is admissible under the general issue.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

Hill & Bowman, for appellant, cited: Brown on Stat Fr. (ed. 1873), sec. 511, pp. 391, 402, 411, 414; Hook v. Turner, 22 Mo. 333; Wag. Stat. 1015, 1033, 1034, sec. 8, p. 1040, sec. 15; Martin v. Martin's Admr., 27 Mo. 227; Irwin v. Childs, 28 Mo. 576; Thompson v. Mosley, 29 Mo. 477; Alterbery v. Powell, 29 Mo. 429; Green v. Gallager, 35 Mo. 226; Archer v. Merchants & Manufacturers' Ins. Co., 43 Mo. 442; Ward v. Pine, 50 Mo. 38; Barry v. Coombe, 1 Pet. 640; Kay v. Curd, 6 B. Mon. 103; 1 Sugden on Vend. (3d Am. ed.) 258, 259; Ib. 259, sec. 8 and notes, p. 260, note t; King's Admr. v. Wood, 7 Mo. 390; Sugden on Vend. (ed. 1873) 198, 199, note 2, p. 251, sec. 218; Hazard v. Day, 14 Allen 494; Gaunt v. Hill, 1 Stark. 10; Ballingall v. Bradley, 16 Ill. 373; Stratford v. Bosworth, 2 V. & B. 341; Whaley v. Bagnell, 1 Bro. P. C. 345; Roberts v. Tucker, 3 Wels. Hurl. & Gord. 632; Browne on Stat. Fr. (3d ed.) 391, sec. 371; Smith v. Surnam, 9 B. & C. 561; Williams v. Bacon, 2 Gray 387; Jenness v. Mt. Hope Co., 53 Me. 20; Benj. on Sales (Perkins' Am. ed.), 39, note c, 40, sec. 39; Thomas v. Blackman, 1 Col. 301, 312; Chevely v. Fuller, 13 C. B. 122; Lyman v. Robinson, 14 Allen 242; Hutcheson v. Blackman, 3 Metc. (Ky.) 80; Carr v. Duval, 14 Pet. 77; Bruce v. Bishop, 43 Vt. 161-163; Eliason v. Henshaw, 4 Wheat. 225-228; Abbot v. Sheppard, 48 N.H. 16; Thurston v. Thornton, 1 Cush. 89; Allcot v. Boston Steam Flour Mill, 9 Cush. 17; Potts v. Whitehead, 5 C. E. Green, 55-58; Ib. 512; Schreck v. Pierce, 3 Iowa 350.

James O. Broadhead, and Broadhead & Overall, for respondents, cited: Ferguson v. Hannibal & St. Jo. R. R. Co., 35 Mo. 452; Caldwell v. McKee, 8 Mo. 339; Pinkston v. Stone, 3 Mo. 119; Powers v. Nelson, 19 Mo. 190; Ponroz's Admr. v. Brown, 19 Mo. 302; Irwin et al. v. Chiles, 28 Mo. 576; Wag. Stat. 1015, sec. 12; Green v. Gallagher, 35 Mo. 226; Northrup et al. v. Mississippi Valley Ins. Co., 47 Mo. 435; The State v. Williams, 48 Mo. 210; Hazin v. Cliff, 10 Baldw. 303; Beatty v. Swarthout, 32 Barb. 293; Weaver v. Barden, 49 N.Y. 284; Webb v. Counce, 11 Mo. 9; Moses v. Burding, 31 N.Y. 462; McGavock v. Woodlief, 20 How. 221; Koch v. Emmerling, 22 How. 69; Barnard v. Monnot, 15 Am. Law. Reg. (N. S.) 209; Coleman v. Carrigan, 18 Barb. 67; Glentworth v. Luther, 21 Barb. 145; Holly v. Gosling, 3 E. D. Smith, 262; Chilton v. Butler, 1 E. D. Smith, 150; Beebe v. Roberts, 3 E. D. Smith, 194; Doty v. Miller, 43 Barb. 529; Story on Ag., secs. 29, 107; Riley v. Minor, 29 Mo. 459.

Arba N. Crane, for respondents, cited: Broadwater v. Darne, 10 Mo. 277, 286; Eaton v. Perry, 29 Mo. 96; Harrison v. Richardson, 1 Moo. & R. 504; Greene v. Gallagher, 35 Mo. 226; Bailey v. Chapman, 41 Mo. 536; 2 Wag. Stat. 1037, sec. 23.

OPINION

LEWIS J.

The petition states that plaintiffs, under the partnership style of Cavender & Rowse, are real estate agents and brokers. That, on February 28, 1874, defendant employed them to purchase for him from Messrs. John A. and William H. Scudder " a lot of ground in blocks numbered 23 and 24 in the city of St. Louis, fronting one hundred and eighty-three feet and five inches on Main street, by a depth of one hundred and forty-two feet and three inches, being the same lot whereon the Ames pork-house is situated; " that defendant instructed plaintiffs to offer $600 per foot for the property, and to effect the purchase at that price within ten days; that it was understood that plaintiffs' commissions on the transaction would be 2 1-2 per cent. of the purchase money, but it was stipulated that this should be paid by the Messrs. Scudder, and that plaintiffs would divide the same, when realized, with the defendant, allowing him one-fifth part thereof; that, on March 2d following, plaintiffs consummated the agreement for the purchase in exact accordance with defendant's directions; that the Messrs. Scudder, complying with the proposed terms, duly executed and acknowledged a general warranty deed of the property to defendant, and delivered the same to plaintiffs, authorizing them to receive the purchase money from defendant, and to retain out of it their commission of 2 1-2 per cent; that plaintiffs, on March 9th, offered the deed to defendant, but he refused to accept the same, or in any manner to ratify or complete the said judgment; that plaintiffs thus lost their commissions earned in the negotiation of the purchase, whereby they are damaged in the sum of $4,000, for which they ask judgment. Defendant's answer denies all the allegations in the petition.

The cause was tried before a jury, who rendered a verdict in plaintiffs' favor for $2,314.65. Defendant appealed.

The first question to which our attention is directed is whether, upon the facts stated, the plaintiffs had any right of action against the defendant? It is argued that they had none, because it was expressly stipulated that their commissions were be to paid by the Messrs. Scudder, and not, in any event, by the defendant; that this is an attempt to hold a party responsible for violating his contract, not with the party suing, but with a third party-- the defendant here having violated none except that made through the plaintiffs, Messrs. Scudder. But this argument ignores the prominent fact that there were two distinct contracts. One was made by defendant, through his agents, in the purchase of the property. The other was made with the agents, in securing their services to bring about the purchase. The latter is the subject of the present suit.

When the plaintiffs were employed by the defendant to effect a purchase for his benefit, they undertook to do so for a consideration, which was clearly understood. This was that, in the event of success, they were to be compensated according to the usages of their business, by a per centage upon the amount of purchase money. The defendant said to them, in effect: " You procure the consent of the property owners to sell to me upon the terms indicated. I undertake, on my part, to consummate the trade by paying the purchase money, so that you will realize your commissions." The defendant's undertaking to take and pay for the property, so that plaintiffs would get their compensation, was as emphatic and as binding as if he had agreed to pay the commissions himself. Can he deliberately violate that obligation, and then set up his own dereliction as a reason why the other contracting parties shall lose their earnings? It is here urged that, in " no event, was the defendant to pay the commissions." But that was a condition of the contract, and, like all other conditions, was based on an assumption that the terms of the contract would be performed. When the defendant failed on his part, the whole was annulled. The plaintiffs then sue him for the commissions, or their equivalent, not because the contract holds him to their payment, but because, by his violation of the contract, he has destroyed its obligatory force, and deprived the plaintiffs of the fruits of performance on their part; wherefore they are entitled to such a recovery in damages as will restore what the defendant has unlawfully compelled them to lose through his non-performance. The defendant can hardly say to the plaintiffs, " I have violated my contract; therefore, I hold you to its exact terms." It is very clear, in our view, that the petition shows a complete cause of action.

The testimony tended generally to prove the plaintiffs' case as set out in the petition. Defendant offered to prove that at the time of his alleged employment of the plaintiffs to make the...

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