Harrison v. Lakenan

• Decision Date: 24 May 1905
• Parties: HARRISON v. LAKENAN et al.
• Court: Missouri Supreme Court

88 S.W. 53

189 Mo. 581

HARRISON v. LAKENAN et al.

Supreme Court of Missouri, Division No. 1.

May 24, 1905.

1. BROKERS—COMMISSIONS—PLEADING.

Where, in an action against brokers who had effected a sale of plaintiff's land, the petition alleged that defendants received from the purchaser a sum of money for the use of plaintiff, and retained it, refusing to pay it over, the petition was not insufficient for failing to allege that defendants were authorized to collect the money.

2. SAME—VARIANCE — AFFIDAVIT OF PREJUDICE.

A defendant could not insist on appeal that the petition alleged a written contract, while the proof showed a verbal one, where he filed no affidavit under Rev. St. 1899, § 655, providing that, when it shall be alleged that a party has been misled by a variance, the fact shall be proved by affidavit, whereupon the court may order the pleading to be amended.

3. SAME—DEMURRER TO EVIDENCE.

Where there was substantial evidence introduced by plaintiff to establish the allegations of the petition, a demurrer to the evidence was properly overruled.

4. SAME—ADMISSIBILITY OF EVIDENCE—ERROR CURED BY INSTRUCTION.

Where the issue was whether plaintiff had consented to an alteration in a written contract between himself and defendant, the admission of evidence bearing on the question whether defendant had by false representations induced plaintiff to agree to a modification was cured by an instruction that, if plaintiff had consented to the modification, the verdict should be for defendant.

5. CROSS-EXAMINATION—HARMLESS ERROR.

There was no error prejudicial to defendant in cross-examining him as to the meaning of letters written by him to plaintiff, defendant being thus offered an opportunity of explaining the meaning of his letters.

6. ACTION—DEMAND—WAIVER.

By the express provisions of Rev. St. 1899, § 1575, an objection that no demand for the subject-matter of the suit was made prior to the action is not available unless it is expressly set up by way of defense and accompanied by a tender.

7. TRIAL — CREDIBILITY OF WITNESSES — INSTRUCTIONS.

An instruction that in determining the weight and credibility to be given to the testimony of any witness the jury might take into consideration the "character" of the witness was proper where each party contended that the testimony on behalf of the other party was unreliable.

8. BROKERS — COMMISSIONS — ALTERATION OF CONTRACT—EFFECT.

Where brokers, without the consent of their customer, altered a written contract so as to give them a greater commission, the alteration rendered the entire contract void.

9. SAME—INSTRUCTIONS.

On an issue as to whether brokers, without the consent of their customer, had materially altered the written contract, it was not error to instruct that the customer was not bound by the alteration unless he was present in the office of the brokers at the time the alteration was made, the brokers' theory being that the alteration was made at their office, and there being no evidence to show that it was proposed, agreed to, or made at any other place.

10. SAME—ACTION AGAINST BROKER—MONEY RECEIVED—INSTRUCTIONS.

In an action against brokers to recover moneys retained by them out of the purchase price, an instruction that, though plaintiff gave defendants authority to sell his land at a specified sum per acre, such authority did not excuse defendants from selling for the best obtainable price, was not erroneous on the theory that it made the agent exceed the instructions of his principal, and made him liable if he did not.

11. SAME—FRAUD—INSTRUCTIONS.

Where a landowner sued his brokers, who had effected a sale, to recover a portion of the purchase money which had been retained by them on the ground that the contract was not binding on him because he had been fraudulently induced to enter into it by the act of the defendants in not correctly reading the contract to him, and also on the ground that the contract had been nullified by an alteration thereof by defendants, an instruction that, if plaintiff signed the original contract, defendants, in reading it to him having fraudulently deceived him, then the contract was not binding, was not erroneous on the theory that the action was not one for the cancellation of a contract.

12. SAME—INSTRUCTIONS ASSUMING FACTS.

Where, in an action to recover from brokers a portion of the purchase money retained by them for effecting a sale of plaintiff's land, the evidence showed that the purchaser gave his check to plaintiff, and he turned it over to defendants, who subsequently gave plaintiff their check, an instruction assuming that defendants received the money from the purchaser was not erroneous.

13. SAME—ARGUMENTS OF COUNSEL.

On an issue as to whether brokers had made an alteration in a written contract between themselves and their customer it was not error for plaintiff's counsel, in his argument to the jury, to comment on the fact that the contract which was before the jury appeared to be in five different handwritings.

14. APPEAL—REVIEW—QUESTIONS OF FACT.

The mere fact that the preponderance of the evidence may, in the opinion of the Supreme Court, be against the verdict, is no ground for disturbing the judgment where there is substantial evidence to support it.

Appeal from Circuit Court, Audrain County; E. M. Hughes, Judge.

Action by Thomas Harrison, Sr., against J. J. Lakenan and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

C. A. Barnes, F. R. Jesse, and Geo. Robertson, for appellants. R. D. Rodgers and P. H. Cullen, for respondent.

MARSHALL, J.

This is an action at law to recover $4,907.10 alleged to have been received by the defendants for the use of the plaintiff, and by the defendants retained without the knowledge or consent of the plaintiff. There was a verdict and judgment for the plaintiff for $4,888, from which, after proper steps, the defendants appealed.

The issues: The petition was originally in three counts, and upon motion of the defendants the plaintiff was required to elect upon which count he would stand, and accordingly he elected to stand on the first count of the petition. In substance, that count alleges that the defendants were and are partners engaged in the real estate business; that in June, 1898, the plaintiff employed defendants to sell his farm, consisting of 985.82 acres of land, in Callaway county, Mo., and agreed to pay them for so doing a commission of 5 per cent. on the first $1,000 realized from the sale, and 2½ per cent. on each remaining $1,000 so realized; that the defendants agreed so to do for said commission; that thereafter, on the 14th of October, 1898, defendants sold the land to one L. K. Scroggins at the price of $25 an acre, aggregating $24,645.50, and that they collected said sum from purchaser therefor; that the defendants are entitled to retain, as their commission, the sum of $522; that about October 25, 1898, the defendants paid to the plaintiff the sum of $19,216.40, received by them from the sale of said land as aforesaid, "leaving a balance of $4,907.10 due me out of the purchase price of said land"; that said last-named sum was collected by the defendants for the use of the plaintiff as a part of the purchase price of said land about the 14th day of October, 1898, and retained by them, without his knowledge or consent; and that, though demanded, the defendants have failed and refused to pay the same to the plaintiff.

The answer is a general denial.

The case made is this: Prior to and on the 11th of September, 1897, the plaintiff was a man 82 years of age, a farmer, and owned about 1,249 acres of land, more or less, in Callaway county. The defendants were partners, and for many years had been engaged in the real estate business in Mexico, Mo. On said 11th of September, 1897, at plaintiff's solicitation, as the defendants say, or at defendants' request, as the plaintiff says, the plaintiff placed said land in the hands of the defendants for sale. A written authority or contract was then entered into between the parties, as follows:

"I hereby authorize and empower Lakenan & Barnes, of Mexico, Missouri, to sell for me the following real estate situated in Callaway County, Missouri: [Here follows a description of the land], and containing in all 1,249 acres, more or less, for the sum of $23 per acre, or my home place, 950 acres, at the same price, or the 300 acre farm occupied by Jack Harrison, at the same price, and also [a certain 80-acre tract described] at $20.00 per acre, separately or with other land.

"[July 15, 1898, price reduced to $20.00 pr acre. L. & B. to get $500.00 out of $20.00 pr acre, and anything they can get over $20.00 pr acre.]

"One-half or more, option of buyer, cash or possession, and balance in one year with 8% interest from date.

"I promise to pay to said agents 5% commission on the 1st $1,000.00 of each sale; 2½% on balance, per cent. commission on the gross amount of said real estate, or any part thereof may bring when by or through them, or if sold by me, to pay party to whom they have shown this property. * * * In case said agents desire they may trade or sell said property for what they please just so they account to me for said price less said commission."

The portions of the writing omitted are not material to this controversy. In the fall of 1897 the defendants procured Senator Wall, of Stanton, Ill., to examine the place. The defendants contend that on that occasion the plaintiff told the defendant Barnes that he would take $20 per acre for the land. The plaintiff says that in June, 1898, when Senator Wall examined the land a second time, the defendant Barnes told him he could not sell the farm at more than $20 an acre, and he then authorized him to sell at that price. The defendants say that in July, 1898, Senator Wall indicated to them that he would come to Missouri and buy the land if he could get it for $20 an acre, and that on the 11th of July,...