Fisher & Company Real Estate Company v. Staed Realty Company

• Citation: 62 S.W. 443,159 Mo. 562
• Parties: FISHER & COMPANY REAL ESTATE COMPANY v. STAED REALTY COMPANY, Appellant
• Decision Date: 12 February 1901
• Court: United States State Supreme Court of Missouri

62 S.W. 443

159 Mo. 562

FISHER & COMPANY REAL ESTATE COMPANY v. STAED REALTY COMPANY, Appellant

Supreme Court of Missouri, First Division

February 12, 1901

Appeal from St. Louis City Circuit Court. -- Hon. P. R. Flitcraft Judge.

Affirmed.

T. J Rowe for appellant.

(1) The proof made does not support the allegations of the petition. (2) The first instruction given at the instance of plaintiff is not bottomed upon the allegations of the petition; and there are no allegations in the petition to warrant the giving of said instruction. (3) The overwhelming weight of the evidence established the fact that F. H. and C. B Gerhart were the agents of defendant and not the agents of the plaintiff, and that they made the sale of the property to Drummond under a written contract with defendant to pay them $ 5,000 for their services as such agents for defendant. (4) There is no evidence that the contract alleged in the petition was performed by the plaintiff. (5) The proof made by plaintiff shows that the property was sold for about $ 336,500, and was not sold for $ 340,000.

Lyon & Swarts for respondent.

The instructions given for the respondent were correct, the appellant's instruction, in the nature of a demurrer to the evidence, was properly refused, and under the pleadings and the virtually undisputed evidence in the case, the verdict of the jury was manifestly for the right party, to-wit, the respondent. Gelatt v. Ridge, 117 Mo. 553; Tyler v. Parr, 52 Mo. 249; Nesbitt v. Helser, 49 Mo. 583; Grether v. McCormick, 79 Mo.App. 325; Stinde v. Blesch, 42 Mo.App. 581; Goffe v. Gibson, 18 Mo.App. 1; Mechem on Agency, sec. 966, pp. 794, 795.

OPINION

MARSHALL, J.

The defendant owned the Laclede building, corner Fourth and Olive Streets, St. Louis. There were three mortgages on it for $ 100,000, $ 175,000 and $ 40,000, respectively. The first mortgage bore five per cent interest and the other two six per cent interest. About May or June, 1896, the defendant employed the plaintiff to sell the property, fixing the selling price at $ 375,000, and agreed to pay defendant, who was engaged in the real estate business, two and a half per cent commission on the sum realized from the sale, for its services. The defendant endeavored to sell, sent out some two hundred circular letters to capitalists, and personally tried to effect a sale to various persons who were able to buy. The money market was very tight at that time, and the property could not be sold at that price. The defendant became very anxious about the matter, as the summer progressed, and from time to time reduced his selling price to $ 330,000 net, the purchaser to pay commissions. In August or September the plaintiff arranged with F. H. & C. B. Gerhart, who were also real estate agents in St. Louis, to assist in selling the property, agreeing, if they found a purchaser, to allow them five thousand dollars out of the commission of two and a half per cent. Plaintiff informed defendant of this arrangement, and introduced P. M. Stead, the president of defendant, to the Gerharts, who were not previously acquainted. The terms of sale, the incumbrances and the above stated arrangement as to commissions, were fully discussed between the parties at that time, and were stated to be as hereinbefore set out. At that time defendant reduced the selling price from $ 375,000 to $ 350,000. Prior to the election in November, no sale was effected, although defendant reduced the selling price to $ 330,000 net, the purchaser to pay commissions. Immediately after the election the defendant raised the selling price to $ 345,000. The Gerharts succeeded in getting an offer for $ 335,000, the defendant to reduce the interest on the outstanding incumbrances to five per cent and to pay commissions. The defendant said the election had changed the condition of the money market, and so refused to sell at that price. Finally, defendant fixed his selling price at $ 340,000, the arrangement as to interest and commissions to be as last stated. So, on the twelfth day of November, 1896, the Gerharts took from defendant a three days' option on these terms. The option though taken in the name of the Gerharts was really for the true purchaser, James T. Drummond. Within the three days Drummond paid five thousand dollars earnest money. When it came to closing up the transaction, the defendant wanted the $ 340,000 net, and declined to pay any commission, but when the Gerharts would not go further with the matter or turn over the five thousand dollars earnest money, unless their promised commission of five thousand dollars was secured, the defendant entered into a written agreement to pay their said commissions. The defendant refused to pay, and has never paid, plaintiff anything whatever.

The sale to Drummond was consummated for $ 340,000, Drummond assuming the deeds of trust as a part of the purchase price, and the defendant allowing him about $ 3,200, the difference between six and five per cent, the rate of interest on a part of the incumbrances. The Gerharts were paid their commission of five thousand dollars; the defendant refused to pay the plaintiff anything. The plaintiff then sued for $ 3,500, the balance of the two and a half per cent commission on $ 340,000, aggregating $ 8,500, less the five thousand dollars paid the Gerharts. The petition is upon the express contract. The answer is a general denial.

There is no substantial conflict in the evidence. The defendant admits the original contract with defendant; admits he was introduced to the Gerharts by the plaintiff, and that he never knew Drummond; admits that the Gerharts transacted all the negotiations with Drummond; but says that his contract with the Gerharts when the sale was about to be consummated, was all the commission he agreed to pay after he fixed the selling price at $ 340,000. In this, however, he is contradicted by both the Gerharts and by the president of the plaintiff, who acted for the company throughout the transaction.

The instructions given for the plaintiff properly limited the plaintiff's right to recover to the contract pleaded. The instructions given for the defendant were that plaintiff must recover, if at all, upon the contract, and if the property was sold for less than $ 340,000 the plaintiff could not recover at all. There was a verdict for the plaintiff for $ 3,815, and defendant perfected this appeal.

I.

"It is well settled in this State that a real estate broker performs his duty, and is entitled to his commission, when a purchaser is introduced who is ready, willing and able to buy on the terms authorized by...