Atterbury v. Hendricks

• Decision Date: 02 December 1907
• Citation: 106 S.W. 111,127 Mo. App. 47
• Parties: ATTERBURY et al. v. HENDRICKS.
• Court: Missouri Court of Appeals

106 S.W. 111

127 Mo. A. 47

ATTERBURY et al. v. HENDRICKS.

Kansas City Court of Appeals. Missouri.

December 2, 1907.

1. PLEADING — INCONSISTENT DEFENSES.

Traverses and defenses in avoidance may go together where they are not inconsistent, that is, where the proof of one defense will not necessarily disprove the other.

2. SAME.

A general denial, in an action by brokers for commissions for procuring a purchaser of real estate, raises an issue of every fact essential to the cause of action, and there is no incongruity between a general denial and the facts that a contract of sale was actually made between the owner and a purchaser procured by the brokers, and that the brokers accepted employment from each party without the consent of the owner.

3. SAME.

In an action by brokers for commissions, answers by way of a general denial and in avoidance alleging that the brokers were employed to procure a purchaser, that a contract between the owner and a purchaser procured by the brokers was entered into, and that the brokers, without the consent of the owner, acted in the employ of both parties, are in part inconsistent, and the admissions are equivalent to a specific admission that the purchaser procured was ready, able, and willing to purchase, eliminating every issue save the question whether the brokers acted in the employ of both parties without the consent of the owner.

Appeal from Circuit Court, Chariton County; John P. Butler, Judge.

Action by H. C. Atterbury and another against I. F. Hendricks. From a judgment for plaintiffs, defendant appeals. Affirmed.

J. A. Collet, for appellant. Crawley & West, for respondents.

JOHNSON, J.

Plaintiffs, who were partners engaged in the business of real estate agents, sued to recover a commission alleged to have been earned under contract of employment with defendant. They prevailed in the trial court, where the cause was tried before a jury, and defendant appealed.

It is conceded that defendant employed plaintiffs to procure a purchaser of certain lands owned by him in Douglass county, Kan., at the price of $29,112.50, that he agreed to accept either cash or other property of satisfactory character and price in payment of the consideration, and that he agreed to pay plaintiffs a commission of $400 for the procurement of a purchaser on the terms proposed. Further, it is conceded that plaintiffs did find purchasers, who entered into a written contract with defendant, by the terms of which the latter was to receive a consideration of $29,112.50 for his land, to be paid as follows: The purchasers assumed the payment of a mortgage on the property of $8,000, and agreed to convey to plaintiff certain real estate in Brunswick, Mo., at the price of $11,000, and a stock of hardware, the value of which was to be ascertained in a manner prescribed by the contract. Further, it was stipulated in the contract of sale "that in case the real estate in Brunswick at $11,000, plus the stock of merchandise invoiced as above provided, does not amount to an aggregate of $21,112.50, the equity in the Douglass county farm, then the parties of the second part [the purchasers] shall pay the party of the first part in cash whatever difference remains, and if the Brunswick store, building, and stock when invoiced exceed $21,112.50, the difference shall be paid by the party of the first party to party of the second part within 30 days." For some reason not disclosed and of no importance to the present inquiry, the trade thus agreed on was not consummated. Defendant refused to pay the commission, and this action followed.

The petition contains a statement of facts sufficient to constitute a cause of action. The answer is as follows: "Comes now defendant, and for answer to plaintiff's petition herein admits that at all the dates and times mentioned in said petition plaintiffs were, and are now, partners engaged in the business of buying and selling real estate for hire, and denies each and every other allegation in said petition contained. Further answering, defendant says that on or about the 20th day of August, 1904, he did list with plaintiffs for sale or exchange the lands in Douglass county, Kan., mentioned and described in said petition, and agreed to pay them a commission for the sale or exchange of said lands upon certain terms and conditions. Defendant further says that thereafter plaintiffs did procure a contract to be made by and between this defendant and William M. Hopkins and Jacob Schrenk, who were then and there partners engaged in the retail hardware business at the town of Brunswick, Chariton county, Mo.; that by said contract defendant contracted and agreed to convey to said William M. Hopkins and Jacob Schrenk the lands aforesaid, and...