Gelatt v. Ridge

• Decision Date: 06 November 1893
• Citation: 23 S.W. 882,117 Mo. 553
• Parties: Gelatt v. Ridge, Appellant
• Court: Missouri Supreme Court

23 S.W. 882

117 Mo. 553

Gelatt v. Ridge, Appellant

Supreme Court of Missouri, First Division

November 6, 1893

Appeal from Jackson Circuit Court. -- Hon. J. W. Henry, Judge.

Affirmed.

Hayward & Griffin for appellant.

(1) No sale was effected by the payment of $ 500 earnest money. Mastin v. Grimes, 88 Mo. 478; Ramsey v West, 31 Mo.App. 676; Kelly v. Thuey, 102 Mo 522. (2) Plaintiff varied from his authority, and the contract he made he was not authorized to make. First. He cannot recover here as upon a quantum meruit. Egerman v Cemetery Ass'n, 61 Mo. 489; Lewis v. Slack, 27 Mo.App. 119; Davis v. Brown, 67 Mo. 313; Halpen v. Maurey, 33 Mo.App. 388; Warson v. McElroy, 33 Mo.App. 553; Smith v. Haley, 41 Mo.App. 611-616. Second. If the contract plaintiff made was different from what he was authorized to make, the fact that it was more advantageous cannot alter the case. Nesbitt v. Helser, 49 Mo. 383; Harwood v. Triplett, 34 Mo.App. 273, at p. 278. (3) Defendant never ratified the contract made by plaintiff as and for a fulfillment of his undertaking. Reiger v. Bigger, 29 Mo.App. 421. (4) The deed to J. F. Brady for M. J. Brady was improperly admitted in evidence. Tobin v. McCann, 17 Mo.App. 481, at p. 483; Worth v. Springfield, 22 Mo.App. 12. (5) Plaintiff was not the procuring cause of the sale finally made. Ramsey v. West, 31 Mo.App. 676.

Pratt, Ferry & Hagerman for respondent.

(1) If Gelatt, with authority to sell, introduced a purchaser able and willing to buy, then Ridge is liable for the agreed commission, even if he changed the terms made to or by Gelatt. Bell v. Kaiser, 50 Mo. 150; Tyler v. Parr, 52 Mo. 249; Timberman v. Craddock, 70 Mo. 638; Goffe v. Gibson, 18 Mo.App. 1; Gaty v. Foster, 18 Mo.App. 639; Beauchamp v. Higgins, 20 Mo.App. 514; Millan v. Porter, 31 Mo.App. 563, 576; Jones v. Berry, 37 Mo.App. 125, 130; Wetzell v. Wagoner, 41 Mo.App. 509, 516; Stinde v. Blesch, 42 Mo.App. 578, 581; Brennan v. Roach, 47 Mo.App. 290, 296. (2) Such being the law, the only question in the case was whether Gelatt's act in departing from his authority was ratified, because Gelatt's original authority and departure therefrom are conceded by both parties. (3) The evidence of ratification is overwhelming. The connection of M. J. Brady with the transaction does not prevent a recovery. (4) The objection to the introduction in evidence of the deeds executed between Ridge and Brady is not well taken; the deeds were admissible as tending to prove a ratification of Gelatt's departure from the letter of his authority. State v. Brooks, 99 Mo. 137.

OPINION

Macfarlane, J.

-- The action is to recover commission by plaintiff, a real estate agent, for the sale of land for defendant under authority contained in the following writing:

"Kansas City, Mo., March 14, 1889.

"I hereby authorize J. M. Gelatt to sell my property at 1116 Main -- 24ft. 3in. -- for the sum of seventy thousand dollars; thirty thousand of which is to be paid in cash within thirty days of this date, ten thousand of which cash is to be paid within three days from date, and the remainder of my equity, twenty-three thousand dollars, to be paid in six months, with interest at the rate of six per cent. The purchaser of said premises is to pay an incumbrance of seventeen thousand dollars, bearing seven per cent. interest, which is now on said property and falls due in January, 1890. Should Mr. Gelatt sell said property on the above terms I am to give him fourteen hundred dollars, and any excess obtained for said property above said price to be his.

"Thomas S. Ridge,

"J. M. Gelatt."

On the next day, March 15, 1889, plaintiff agreed with J. F. Brady for the purchase of the property upon the terms set forth in the following receipt which was given at the time:

"Received of J. F. Brady, five hundred dollars as earnest money in the purchase of Thomas S. Ridge's property, 1116 Main street, Kansas city, Missouri, at a price of seventy-three thousand dollars; ten thousand dollars of the same to be paid within two days from this date, of which five hundred has been paid, and twenty-five thousand dollars when deed is delivered, and twenty-one thousand six months from date of deed at six per cent. and assume seventeen thousand dollars due January, 1890, with seven per cent. interest from date of deed to said Brady.

"J. M. Gelatt,

"Authorized agent for Thomas S. Ridge."

The evidence tended to prove -- indeed there is but little conflict on this point -- that immediately after agreeing upon the terms of sale, and the execution of this receipt the parties met defendant, the contract as made was submitted to and approved by him, and it was then arranged for a subsequent meeting at which a written contract should be prepared and signed, and the balance of the cash payment made. At this first meeting it was disclosed that a tenant occupied a portion of the premises, but the evidence tends to prove that defendant agreed to arrange with him. At the subsequent meeting, held a day or two afterwards, defendant refused to carry out the contract unless the purchaser would take the property subject to the lease, which he at the time declined to do. That Brady was able, ready and willing to carry out the contract is unquestioned.

After refusal of defendant to execute the contract as made, the purchaser, John F. Brady, in the name of his brother, M. J. Brady, for whom the purchase was really made, commenced a suit for a specific performance of the contract. Pending this suit, and on June 27, 1889, Brady agreed to assume the lease, and a contract was made in the name of M. J. Brady, according to the terms of the original sale with this exception, as to the lease and with the exception that the contract recited a consideration of $ 72,500, the $ 500 cash payment having been retained by plaintiff as part of his commission. The contract provided that, defendant should allow Brady for the rents of the premises from April 14, 1889, and the note for the unpaid purchase money should bear date from March 14, 1889, the day of the original sale. The deed and deed of trust executed in pursuance of this contract were made to and by J. F. Brady, were dated June 28, 1889, and recited a consideration of $ 73,000.

The suit was commenced March 23, 1889, and an amended petition filed in October of the same year. The amended petition charged the authority to sell, and agreement as to the commission as contained in the written contract, a sale on the terms contained in the receipt, a ratification of the sale upon those terms and the final consummation of the sale by the execution of the deeds in June, 1889. The answer charged that defendant, before the alleged sale, informed plaintiff of the leasehold interest on the property held by another, and instructed him that any sale should be made subject to the lease, and that Brady, the purchaser, refused to take the property subject to the lease. The answer also charged collusion between plaintiff and the purchaser, by which the sale was to be made without reference to the lease, and for which plaintiff was to receive a commission from Brady. There was no evidence to sustain this charge. The answer admitted the execution of the writing giving plaintiff authority to sell, but denied each other allegation of the petition.

At the request of the plaintiff, the court gave the jury this instruction:

"If the jury find from the evidence the following facts First. That the plaintiff was employed by defendant to sell the real estate, known as 1116 Main street, Kansas City, Missouri, under the written authority read in evidence, dated March 14, 1889; second; that plaintiff, acting under his said employment, and without the same being modified, made a contract to sell said property to one, Brady, on the terms specified on the written receipt and memorandum read in evidence, dated March 15, 1889, and signed J. M. Gelatt, agent for Thomas S. Ridge; third, that plaintiff, after making said contract, brought the parties together; that the terms of the sale were fully explained to defendant and were agreed to, and approved by him, and the action of Gelatt was accepted as a complete performance of his obligation, and the purchaser was ready, willing and able to pay; fourth, that, afterwards, the defendant, for a time, declined to make the deed to Brady until a suit was brought to compel the enforcement of said contract; fifth, that, afterwards, on or before June 28, 1889, the defendant and Brady settled the controversy by a consummation of the sale, at the price, and on the terms of the contract negotiated by plaintiff, with certain exceptions as to a certain lease in favor of a tenant then in possession; sixth, that the defendant then consummated the sale by the execution of the deed to Brady, which is in evidence, and by taking from him the mortgage or deed of trust which, also, is in evidence and plaintiff has received but $ 500 for his services; then, if you find these facts, the court instructs the jury that they must find for the...