Glover v. Henderson

• Decision Date: 19 February 1894
• Parties: Glover v. Henderson, Appellant
• Court: Missouri Supreme Court

25 S.W. 175

120 Mo. 367

Glover v. Henderson, Appellant

Supreme Court of Missouri, First Division

February 19, 1894

Appeal from Jackson Circuit Court. -- Hon. R. H. Field, Judge.

Affirmed.

Karnes Holmes & Krauthoff for appellant.

(1) The plaintiff's agency was not for a definite period, nor coupled with an interest. Therefore, the defendant had the power to terminate it at will. State ex rel. v Walker, 88 Mo. 279; Missouri v. Walker, 125 U.S. 339; Sewing Machine Co. v. Ewing, 141 U.S. 635; Mechem on Agency, secs. 204, 207, 209, 614; Payne v Co., 13 Lea, 507. (2) The plaintiff testifies that he reserved the right to quit the work involved in discharging the agency at any time; hence the defendant had the same right to terminate it. The agreement for a $ 1,500 bonus bound neither party to continue the agency for a year. Coffin v. Landis, 46 Pa. St. 426; Kirk v. Hartman, 63 Pa. St. 97; Rhodes v. Forwood, L. R., 1 App. Cases 256; Mechem on Agency, sec. 204; Chambers v. Seay, 73 Ala. 372. (3) If the plaintiff's suit can be maintained as one to recover the balance due under the contract, as claimed by him, the rule laid down for the measure of his damages is erroneous, and the verdict is excessive. (4) The court erred in admitting the evidence of plaintiff's witnesses as to the amount paid other agents for selling real estate. First. The evidence related to what had been done in other instances without any proof that the practice testified to was sufficiently uniform and well established to constitute a usage. Second. The witnesses admit that in nearly every instance the matter was regulated by contract between the parties. Third. The testimony was not confined to the sale of additions upon the plan adopted in this case, which is admitted to have been a unique and unusual one. Lawson on Usages, sec. 187; 2 Greenl. on Evidence, sec. 251, note a; Ins. Co. v. Waterman, 54 F. 839; Beirne v. Dord, 5 N.Y. 95; Ober v. Carson, 62 Mo. 209; Thomas v. Steam Pump Co., 28 Mo.App. 563. (5) The court erred in giving the first instruction for the plaintiff. That instruction negatived the right of the defendant to terminate the plaintiff's agency without regard to whether it was for a definite or an indefinite period, and, although such agency may not have been coupled with an interest. See authorities cited under point 1. (6) The court erred in giving the second instruction for the plaintiff. (7) The court erred in refusing the instructions asked by the defendant concerning the burden of proof in this case. This burden clearly rested upon the plaintiff, and in view of the fact that the weight of the testimony, direct and circumstantial, is so clearly against the plaintiff it was of the utmost importance that the jury should have been told where the burden rested. Best on Evidence (by Chamb.), p. 274, note; 1 Greenl. on Evidence, sec. 74; Bailey on Onus Probandi, p. 240. (8) The court erred in modifying the defendant's instruction number 4. The reply in this case pleaded an express consent by the defendant to the placing of the building loans in controversy. The modification complained of proceeded upon the idea of an implied consent, which is the equivalent of a waiver. The allegation of express consent did not warrant this submission of the issue of waiver. Ehrlich v. Ins. Co., 88 Mo. 249. The modification was erroneous in not informing the jury what facts proved an implied consent. Similar instructions have often been condemned by this court. Fugate v. Carter, 6 Mo. 267; Hickery v. Ryan, 15 Mo. 62; Atterbury v. Powell, 29 Mo. 429; Wiser v. Chesley, 53 Mo. 547; Morgan v. Durfee, 69 Mo. 469; Boogher v. Neece, 75 Mo. 383; Yarnall v. Railroad, 75 Mo. 575; Turner v. Railroad, 76 Mo. 261; Anderson v. McPike, 86 Mo. 293; Estes v. Fry, 22 Mo.App. 80; Speak v. Dry Goods Co., 22 Mo.App. 122.

E. W. Taylor and Gage, Ladd & Small for respondent.

(1) That the petition in this case was quantum meruit for services rendered and expenses incurred, there can be no doubt. This was a case where the agent had only partially completed his undertaking; where the fact that he had not completed his undertaking is attributable to the wrongful revocation of his authority by his principal, before he had time or opportunity to perform fully. Ehrlich v. Ins. Co., 88 Mo. 249; Mechem on Agency, sec. 609. (2) The petition alleged, the proof showed, and the jury found, that the employment of plaintiff as defendant's agent was for at least one year. It was, therefore, fixed for a definite time. The plaintiff being wrongfully discharged, quantum meruit for his services and expenses was one of his proper remedies. Ehrlich v. Ins. Co., 88 Mo. 249, and cases cited; Mechem on Agency, sec. 621. (3) Where an agent, after part performance, is discharged and brings quantum meruit to recover for his services and expenses, the measure of his damages is the reasonable value and amount of these, less, of course, what he has already received, and in this recovery he is not limited by the contract price. Smith on Master and Servant, sec. 96; Ehrlich v. Ins. Co., 88 Mo. 249; Mechem on Agency, sec. 622. (4) There was no error in modifying plaintiff's fourth instruction.

Black P. J. Barclay, J., absent.

OPINION

Black, P. J.

Plaintiff brought this suit to recover the value of services rendered and expenses incurred in selling for defendant a large number of lots. The trial resulted in a verdict and judgment for the plaintiff for $ 4,000, from which the defendant appealed.

Mr. Henderson, the defendant, owned a tract of thirty acres of land adjoining Kansas City, upon which there was an incumbrance of $ 25,000. He laid the land off into an addition under the name of Round Top, so as to contain two hundred and eighty lots, the lots in general having a front of twenty-five feet each. He had purchased the land on speculation and became exceedingly anxious to sell. With this end in view, he and the plaintiff Glover, a real estate agent, had frequent consultations. Early in 1890 they developed the following scheme for selling the lots: Each purchaser was to make a small cash payment, and monthly deferred payments of $ 10 each, the deferred payments to be evidenced by notes. After the payment of a given number of notes, the defendant was to execute to the purchaser a warranty deed, the purchaser securing the unpaid notes by deed of trust upon the lot purchased. In this way sufficient cash was to be obtained to procure a release of the particular lot from the incumbrance. The deed constituting the incumbrance contained a clause to the effect that lots should be released from time to time upon the payment of a given sum per lot.

The defendant had made a declaration of trust in favor of Mr. Waller and Mr. Rhodes, whereby each became entitled to a one-fourteenth interest in the land. After the plan for selling the lots had been matured, the parties, including Waller and Rhodes, visited the addition and placed prices upon each and all of the lots, which varied from $ 4 to $ 22 per front foot. These prices were calculated and arranged so that all the lots would produce about $ 80,000, that being the cost price of the property to the defendant, with interest added. The prices so fixed were noted on a plat called by Glover the net price plat. Each party kept a copy of this plat.

According to the evidence of the plaintiff, the agreement finally made between him and the defendant was to the following effect: Plaintiff was to have the exclusive right to sell the lots. For his compensation he was to add one, two, three or four dollars per front foot, as he saw fit, to the prices designated on the plat of net prices. The net prices with this addition were to constitute the selling prices, for which cash and notes were to be taken. If plaintiff sold out the addition in one year, he was to have an additional compensation or bonus of $ 1,500 cash. The plaintiff was to pay the wages of all necessary employees, subagents, and the expenses of advertising out of his own pocket. The expenses of staking out the lots, clearing off and sodding part of the land were to be paid by plaintiff in the first instance, but for all such expenses he was to be reimbursed out of sales made by him.

The defendant testified that the net price plat, as it is called by the plaintiff, was no more than a temporary statement of the prices, and that they were subject to change from time to time. He testified in direct and positive terms that plaintiff was to have $ 1 and only $ 1 per foot for selling the lots, and his evidence in this respect is supported by that of Waller and Rhodes. In other respects his evidence as to the terms of the contract is the same as the evidence of the plaintiff. All agree as to the $ 1,500 bonus.

The plaintiff made up what he calls selling plats, and caused a large number of them to be published and distributed. These plats designated the prices at which the lots would be sold as a general rule, at $ 2 per front foot in excess of the prices stated in the net price plat. Lots were sold, contracts made, and notes received on the basis of the prices thus stated on the selling plats. The evidence shows that plaintiff entered into the business with great energy and zeal. He advertised the property in almost every conceivable manner, placed an office and an agent on the land, and employed various subagents, paying them their commissions out of his own pocket as he had agreed. Between April and the last of August, 1890, he had sold one hundred and sixty-four lots, that is to say, about four thousand out of the seven thousand front feet. These sales were reported to the defendant from time to time, the reports giving the prices according to the net plat; but it appears the defendant signed the contracts...