23 S.W. 882 (Mo. 1893), Gelatt v. Ridge

Citation:23 S.W. 882, 117 Mo. 553
Opinion Judge:Macfarlane, J.
Party Name:Gelatt v. Ridge, Appellant
Attorney:Hayward & Griffin for appellant. Pratt, Ferry & Hagerman for respondent.
Case Date:November 06, 1893
Court:Supreme Court of Missouri

Page 882

23 S.W. 882 (Mo. 1893)

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

[117 Mo. 556] 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."

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