Bales v. Hendrickson

• Decision Date: 24 January 1927
• Docket Number: No. 15834.,15834.
• Parties: BALES et al. v. HENDRICKSON et al.
• Court: Missouri Court of Appeals

290 S.W. 638

BALES et al. v. HENDRICKSON et al.

No. 15834.

Kansas City Court of Appeals. Missouri.

January 24, 1927.

Appeal from Circuit Court, Vernon County; B. G. Thurman, Judge.

"Not to be officially published."

Action by P. A. Bales and another against Walter Hendrickson and another. Judgment for defendants, and plaintiffs appeal. Affirmed.

W. H. Hallett and Dan Gibson, both of Nevada, Mo., for appellants.

W. M. Bowker and A. E. Elliott, both of Nevada, Mo., for respondents.

ARNOLD, J.

This is an action to recover the sum of $550, alleged to be due plaintiffs from defendants.

The facts of record are that plaintiffs were the owners of 70 acres of land in Vernon county, Mo., and defendants were real estate agents operating in Nevada, the county seat of said county. At some date prior to September, 1925, plaintiffs listed said land with defendants for sale, and requested defendants to find a purchaser therefor, and, at the same time, by oral contract, agreed to pay defendants the customary commission of 5 per cent. on the first $1,000 and 2½ per cent. on the remainder. Thereafter, defendants procured a purchaser for the land in the person of Wilfred W. Moore and Emma E. Moore, his wife, of Garber, Okl., and on September 2, 1925, a written contract was entered into between plaintiffs and the Moores, which provided that the consideration should be $2,600, and that the Moores should pay $150 on the execution of the contract and the balance on or before December 15, 1925.

The contract further provided that the land should be deeded to the, Moores free and clear of debts and taxes, except an existing deed of trust for $1,800, the sellers to pay the interest thereon to December 15, 1925, and all taxes for the year 1925. It was further stipulated that the sellers should execute a warranty deed and place same with defendants herein, to be held in escrow, to be delivered to purchasers upon payment of the balance; that the $150 down payment should be applied on the commission of defendants; and that the rest of the commission, which was $100 in addition to the down payment, should be taken out of the final payment to be made on or before December 15, 1925, as provided: The expenses of the deal to be paid in equal parts by the sellers, P. A. and Adeline Bales, and the balance of the proceeds, after interest, taxes, and commissions are paid, will be paid in equal parts to the two sellers.

Under the terms of the contract, the buyers deposited the stipulated $150 with defendants, and plaintiffs executed and placed with defendants a warranty deed, naming therein as grantees the Moores.

Soon after the completion of the details above mentioned, the Moores returned to their home in Oklahoma and nothing further was done in the matter until in November, 1925, at which time Moore and his wife wrote defendants, asking them to sell the land for them, and stating that if defendants could sell it they could have all they could realize out of it over the $150 down payment. At about the same time the Moores wrote Joe Moore, father of Wilfred W. Moore, who lived in Vernon county, Mo., stating it would suit them better to sell the land, and asked him to find a buyer for it, and to see Hendrickson and Schoeber, defendants herein, and ask them to find a buyer; that they would be satisfied to get back the $150 deposited by them on the signing of the contract. Thereupon Joe Moore brought his said letter to the office of defendants, showed it to them, and besought them to find a purchaser for the land. In this last-named letter, W. W. Moore stated, in case a sale was not made, he would go to Vernon county and take the land, as provided in the contract. Defendants then undertook to sell the land, advertising ill a number of newspapers, offering it for sale at $3,000, and agreed to throw in 100 bushels of corn. In response to these advertisements a number of people called to examine the land, and a sale thereof, including the 100 bushels of corn, was effected on December 2, 1925, to one W. S. Hartman for $3,000. Hartman paid in cash, and on December 7, 1925, defendants paid the interest on the deed of trust and taxes, took out the commission which had been agreed upon for making the sale to the Moores, and then sent plaintiffs by check, each one-half the remainder, in the sum of $119.69, on the basis of $2,600 sale to the Moores. Plaintiffs cashed said checks and retained the money. Defendants returned to the Moores the $150 deposited by them, less $11 expenses incurred in the sale of the land. As above stated, the deed left in escrow named the Moores as grantees and also gave the consideration as $2,600.

On written authority from the Moores, defendants erased the names of the Moores from the deed and inserted as grantee the name of Hartman, and also changed the consideration from $2,600 to $3,000, by erasure and insertion. Shortly after this plaintiffs learned that Hartman had paid $3,000 for the land; and they then tried to convince defendants that they owed plaintiffs more money, upon the theory that the settlement should have been made with them on the basis of the sale at $3,000, instead of $2,600. Upon refusal of defendants to make additional payment, this suit was instituted.

The petition alleges ownership of the land and the engagement of defendants to make the sale thereof; that on December 2, 1925, defendants, as agents of plaintiffs, sold said land to W. T. Hartman and Eliza J. Hartman for $3,000; that, pursuant to the terms of said sale, defendants, as agents for plaintiffs, were paid the sum of $1,200 cash, being the balance due on the assumption by the Hartmans of the existing deed of trust; that there is now in the possession and control of defendants, as plaintiffs' agents, the sum of $550 belonging to plaintiffs; that demand for payment thereof has been made, and payment refused. Judgment therefor is prayed.

The answer admit§ ownership in plaintiffs on September, 8, 1925, of the land described in the petition, and that plaintiffs employed defendants to act as their agent in procuring a purchaser therefor; that in pursuance of said employment they did find a purchaser for said lands in the persons of Moore and his wife, for the price and sum of $2,600; that a written contract of purchase and sale was entered into by plaintiffs with said Moore and wife on September 8, 1925; that defendants settled with and accounted to plaintiffs for the amount of said sale at $2,600, in accordance with the terms and conditions of said written contract; and they deny that they owe plaintiffs thereon any sum whatever. The answer alleges the sale of the said land to the Hartmans was made by and on behalf of the Moores, long after the sale of plaintiffs to the Moores, and generally denies all other allegations of plaintiffs' petition.

The reply is a general denial of all allegations of the answer except the general admissions as to plaintiffs' petition.

The cause was tried to a jury, resulting in a verdict and judgment for defendants. A motion for a new trial was overruled, and plaintiffs appeal.

It is asserted, in support of the appeal, that one cannot act as the agent for two parties whose interests are antagonistic, as in the case of buyer and seller, without the consent of both parties. Cases are cited in support of this rule, but none is necessary because defendants assent to the doctrine. However, the disagreement arises from the construction placed upon the facts as shown by the record. Plaintiffs' position is that defendants were acting for...