Bassford v. West
| Citation | 101 S.W. 610,124 Mo.App. 248 |
| Parties | BASSFORD, Respondent, v. WEST, Appellant |
| Decision Date | 02 April 1907 |
| Court | Court of Appeal of Missouri (US) |
Appeal from Audrain Circuit Court.--Hon. James D. Barnett, Judge.
REVERSED.
Judgment reversed.
Fry & Rodgers for appellant.
(1) To entitle a broker to compensation, he must have been employed to negotiate the transaction in connection with which his services were rendered; and the employment must be prior to the service. Under plaintiff's own evidence he is not entitled to recover. Dunn v. Price, 28 S.W. 682; Walton v. Clark, 56 N.W. 40, 19 Cyc., p. 217; Samuels v. Luckbach, 54 A. 1091; Addison v Wannamaker, 39 A. 1111; Steidl v. McClymonds, 95 N.W. 906; Veale v. Green, 105 Mo.App. 182; Crosby v. Ice Co., 76 N.W. 958; Meston v Davies, 36 S.W. 805; White v. Templeton, 15 S.W. 483; Mechem on Agency, sec. 600. (2) In an action by a broker to recover commissions the burden is on him to establish by a preponderance of the evidence that he was employed to sell the property or find a purchaser and pursuant thereto performed the services. The plaintiff's instructions ignore the question of agency and employment and authorize a recovery without proof of either. Staehlin v Kramer, 94 S.W. 785; Walton v. Clark, 56 S.W. 40; Vandyke v. Walker, 49 Mo.App. 381; Jones v. Berry, 37 Mo.App. 129.
George Robertson for respondent.
(1) The plaintiff was the procuring cause of this sale. He brought the defendant and the purchaser together and was employed by defendant to do so and is entitled to compensation. Timberman v. Craddock, 70 Mo. 638; Goffe v. Gibson, 18 Mo.App. 1; Milan v. Porter, 31 Mo.App. 563; Henderson v. Mace, 64 Mo.App. 393; Chiles v. Crichfield, 66 Mo.App. 422; Grether v. McCormick, 79 Mo.App. 325; McCormick v. Henderson, 100 Mo.App. 647; Gerhart v. Peck, 42 Mo.App. 644; Crowley v. Somerville, 70 Mo.App. 376; Brennan v. Poach, 47 Mo.App. 290; Wolff v. Rosenberg, 67 Mo.App. 403; Wetzell v. Wagoner, 41 Mo.App. 509; Blackwell v. Adams, 28 Mo.App. 61. (2) If the agent introduced the purchaser or gives his name whereby the sale be perfected by the principal, even though the owner vary the terms from the first negotiations, or wholly conducts the negotiations, the agent is entitled to his commission. Beauchamp v. Higgins, 20 Mo.App. 514; Bell v. Kaiser, 50 Mo. 150; Tyler v. Pane, 52 Mo. 249.
Plaintiff, a real estate agent in the city of Mexico, Missouri, 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 seven or eight 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 non-resident by the name of Gregory, and on Wednesday afternoon, September 20, 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 eight or ten 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 three o'clock, said he had some business to attend to just then, but would return at five o'clock to go with Bassford. He passed the office a short while after five 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 five per cent on the first thousand dollars and two and one-half per cent on the remainder, but as the sale would be a large one, plaintiff would accept two and one-half per half per cent on the entire purchase price. West computed what the commission would amount to at said rate if the purchase price was eight thousand dollars and assented to the charge. About half past five 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 seven or eight acres of his home tract, of which there were thirty 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 23, 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, Missouri, 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 six or seven 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 two and one-half 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 20, defendant placed his residence and six or seven 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...
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