Bassford v. West

• Decision Date: 02 April 1907
• Citation: 101 S.W. 610,124 Mo. App. 248
• Parties: BASSFORD v. WEST.
• Court: Missouri Court of Appeals

101 S.W. 610

124 Mo. A. 248

BASSFORD v. WEST.

St. Louis Court of Appeals. Missouri.

April 2, 1907.

Rehearing Denied April 16, 1907.

1. BROKERS—EMPLOYMENT — IMPLIED AGREEMENT.

Merely asking a broker to introduce one to a particular person who was a prospective buyer is not equivalent to employing him to negotiate a sale, nor is such an introduction sufficient to support a judgment for a commission, if the owner makes the sale himself.

2. TRIAL — INSTRUCTIONS — SUPPORT IN EVIDENCE — BROKER'S COMPENSATION — SUFFICIENCY OF SERVICES.

In an action for a broker's commission for the sale of property, an instruction that plaintiff could not recover on account of having introduced the parties unless defendant knew he was a real estate agent, and at the time accepted his services in making a negotiation for the sale, was unwarranted by the evidence, where it appeared from plaintiff's testimony that he was expressly authorized to make the sale upon a definite commission, and that he never rendered any services beyond introducing the parties before any agreement as to agency was made.

3. BROKERS — ACTION FOR COMPENSATION — PLEADING — VARIANCE BETWEEN ALLEGATION AND PROOF.

Under an allegation of a special contract of employment to sell property, a recovery cannot be had upon an agency implied from the acceptance of the agent's services.

4. SAME — COMPENSATION — SUFFICIENCY OF SERVICES.

A broker is not entitled to recover a commission, even though he was employed to assist in making a sale to a particular person, when, as shown by his own testimony, he did not assist in making the sale further than to introduce the parties prior to his employment, and the negotiations and sale were conducted by the defendant himself without interfering with the broker's plans.

Appeal from Circuit Court, Audrain County; Jas. D. Barnett, Judge.

Action by J. C. Bassford against William E. West. From a judgment for plaintiff, defendant appeals. Reversed.

Fry & Rodgers, for appellant. Geo. Robertson, for respondent.

GOODE, J.

Plaintiff, a real estate agent in the city of Mexico, Mo., obtained judgment against defendant for $133 for a commission alleged to be due for the sale of property. This appeal was prosecuted from the judgment. We surmise that Taylor, the purchaser of the property, had recently moved to Mexico, though this is nowhere stated. At the time of the transaction in question he was dwelling there in a rented house, and was desirous of purchasing a home containing 7 or 8 acres of land in the outskirts of the city. Mrs. Cordelia Rice, who lived in a western suburb and not far from defendant's property, was related to Taylor, and she and her husband, S. M. Rice, wished him to settle in their vicinity. Both Mr. and Mrs. Rice called Taylor's attention to defendant's property prior to the first meeting between plaintiff and Taylor, which occurred on Wednesday, September 20, 1905. The Rices had likewise directed West's attention to Taylor as a possible buyer. West had asked Mr. Rice to use his influence with Taylor to get him to buy the property, and Rice had spoken to Taylor pursuant to the request. Taylor had in mind another property owned by a nonresident by the name of Gregory, and on Wednesday afternoon, September 20th, he and his son entered Bassford's office to make inquiries about it, not knowing, he said, that Bassford was a real estate agent, but for some reason expecting the latter to furnish information regarding the Gregory property. The only conflict in the evidence is in the portion relating to what transpired on said day; and, in considering defendant's contention that a verdict should have been directed in his favor, we will accept the evidence of the occurrences in dispute as true in the phase most favorable to plaintiff. On entering the office Taylor inquired about the Gregory property, and a conversation ensued between him and Bassford about it and other properties. In a few moments, and while they were still talking about real estate matters, West entered, sat down behind Taylor, and soon began to gesticulate to plaintiff in a manner indicating a wish to be introduced to Taylor. In response to these gestures, Bassford used the first break in the conversation to ask West if he would sell 8 or 10 acres of his place including the improvements. West said he would, arising from his chair at the same moment to receive an introduction to Taylor which Bassford gave, with the remark that Taylor wanted to buy the kind of property West had. Thereupon West began to descant on its merits, giving as his reason for wishing to sell that the state of his health compelled him to go to California. After he had talked to West a few minutes plaintiff spoke aside to him as follows: "Yes, sir; I spoke to him before he went out, just to him, not so the others could hear. I told him I would talk now to Mr. Taylor. He had had a talk, and probably I had better talk with him. Q. He had had a talk, and probably you had better have a talk with him? A. Yes, sir. Q. Then Mr. West left? A. Yes, sir. Q. Did Mr. Taylor go out then? A. Well, right soon, I think, as we had agreed upon our appointment. Q. Did you agree upon an appointment there in the office? A. Yes, or at the office door, somewhere along there." Plaintiff conversed briefly with Taylor after West had departed about taking Taylor to see the property that afternoon. Taylor asked what time it was, and, on learning it was 3 o'clock, said he had some business to attend to just then, but would return at 5 o'clock to go with Bassford. He passed the office a short while after 5 o'clock, but not seeing Bassford in, went home, intending to return the next (Thursday) morning to go to view the property. West came back to the office in half an hour after leaving, and a conversation ensued between him and plaintiff regarding the sale to Taylor, in which West asked what plaintiff's commission would be for selling the property. Plaintiff told him the usual rate was 5 per cent. on the first $1,000 and 2½ per cent. on the remainder; but, as the sale would be a large one, plaintiff would accept 2½ per cent. on the entire purchase price. West computed what the commission would amount to at said rate if the purchase price was $8,000, and assented to the charge. About 5:30 o'clock West called Bassford by telephone, and inquired if the Taylors had come to the office as agreed, and Bassford replied that they had not, but he would bring them to West's place if they did; saying at the same time that such prospects for a sale "did not always materialize." The foregoing statement of the facts is according to Bassford's testimony. West denied having indicated by gestures, or otherwise, that he wished to be introduced to Taylor, swore he entered the office, not knowing Taylor was there, to see Bassford about buying a piece of property; admitted he was introduced, and that a conversation ensued between him and Taylor regarding a sale of 7 or 8 acres of his home tract, of which there were 30 acres. He denied having returned to Bassford's office during the afternoon, or agreeing to pay him a commission or telephoning him; swore he never authorized Bassford to act as his agent, that nothing passed between them except the introduction to Taylor and a remark by Bassford as he (West) was leaving the office that Bassford intended to take Taylor to look at properties that afternoon and might drive him past West's place. On Thursday morning Taylor looked about the town until noon, and immediately after dinner defendant drove to his residence with a carriage and took him to view defendant's property, the sale of which was consummated by defendant to Taylor on Saturday, September 23d for $6,650.

We have stated the facts rather minutely in order to point out that, in our opinion, both the petition and the instructions lost sight of the real case, and presented one in the form in which controversies over the sales of property through the agency of a broker usually occur. The petition contains two paragraphs, both of which allege that on or about September 20, 1905, plaintiff was engaged in conducting a real estate agency in Mexico, Mo., selling property for owners and finding purchasers. The first paragraph then states that on or about said date defendant authorized plaintiff to find a purchaser for his residence and 6 or 7 acres of land; that plaintiff, pursuant to said request, found a purchaser for said property, and defendant made a sale to the purchaser so found and introduced to defendant; that said sale was made through the direct exertions and agency of plaintiff for $6,650, and defendant agreed to pay plaintiff for said services 2½ per cent. on the amount for which the property was sold, wherefore it was alleged that defendant had become indebted to plaintiff in the sum of $166.25, for which sum judgment was prayed. The second paragraph alleged that on or about September 20th defendant placed his residence and 6 or 7 acres of land in the hands of plaintiff for the purpose of selling same, and to find a purchaser; that on or about said date plaintiff did find a purchaser for said property, introduced him to defendant, and defendant, on account of said introduction, made a sale to the purchaser so found and introduced by plaintiff; that said property was sold for the sum of $6,650, and the reasonable value of plaintiff's services was 5 per cent. on the first $1,000 of said price and 2½ per cent. on the remainder; that defendant thereby became indebted to plaintiff in the sum of $191.25, for which judgment was prayed. The answer was a general denial.

The present case diverges from the common type of litigation between brokers and principals in that defendant had not put his property in plaintiff's hands for sale prior to the introduction to Taylor, and never employed plaintiff further than to assist in selling to Taylor. It was to aid in a specific transaction that plaintiff was engaged. If it is true,...