Bay v. Wank

• Decision Date: 02 April 1923
• Citation: 255 S.W. 324,215 Mo.App. 153
• Parties: VIRGIL O. BAY, Respondent, v. ANDREW WANK, Appellant. *
• Court: Kansas Court of Appeals

255 S.W. 324

215 Mo.App. 153

VIRGIL O. BAY, Respondent, v. ANDREW WANK, Appellant. *

Court of Appeals of Missouri, Kansas City

April 2, 1923

Rehearing Denied 215 Mo.App. 153 at 159.

Appeal from Circuit Court of Buchanan County.--Hon. Thomas B. Allen Judge.

REVERSED.

Judgment reversed and cause remanded.

John E Dolman for appellant.

J. M. Johnson, Wm. E. Stringfellow and Scholer & Alford for respondent.

OPINION

BLAND, J.

This is an action for a real estate broker's commission. There was a verdict and judgment in favor of plaintiff in the sum of $ 6000 and defendant has appealed.

Plaintiff was a telegraph operator who engaged on the side in the business of selling real estate on commission. In April or May, 1917, hearing that defendant, whom he did not know, wanted to dispose of some mining property located at California, Missouri, wrote defendant a letter concerning the sale of the property. The property was owned by defendant personally and through a corporation of which he owned the stock. Plaintiff did, not keep a copy of the letter nor defendants reply thereto but plaintiff testified:

"I wrote to Mr. Wank and told him that I had heard that he wanted to dispose of the mining property at California. I told him that I had been successful in handling several properties, and that I knew of some people that were in the market for mining properties and to let me know on what terms he wanted to handle it on. . . . Mr. Wank wrote me a letter stating what he had there, describing the mill and the land. Of course I knew where the land was. I knew it before Mr. Wank did, and he said he was very anxious to sell it, that he wanted to go to--I believe Arizona, and that he would make a net price of nine thousand dollars and no commission."

Plaintiff attempted to sell the land to two gentlemen living at Carthage, Missouri, but was unsuccessful. In August, 1917, a Mr. Derr, at the time of the trial deceased, came to Sedalia where plaintiff was then employed and attempted to sell plaintiff and others some oil leases. Plaintiff was not interested but told Derr that he had some property that "I thought I could interest him in and that he could interest other people much easier than he could in some of his oil leases." He then took Derr to California, showed him the mining property and made Derr a price of $ 15,000 for the property. Derr said that there were some people in Des Moines, Iowa, that he thought he might interest in the property. Plaintiff told Derr that defendant owned the property and that he lived in St. Joseph, Missouri, and Derr suggested that he stop off at St. Joseph, Missouri, on his way to Des Moines and see the defendant. Thereupon plaintiff called defendant by long distance telephone and told him that he had taken Derr to look at the property and that Derr would see him the next day at St. Joseph on his way to Des Moines to interview some parties concerning the purchase of the property, and that he had quoted Derr a price of $ 15,000, "or may be $ 20,000." Derr told plaintiff that he thought he could get $ 25,000 for the property. Some time after Derr first came to Sedalia, defendant wrote plaintiff "wanting to know what was being done and insisting on hurrying up;" that defendant desired to go to Arizona.

Apparently the Des Moines people were not interested and Derr brought some other parties from Oklahoma and Colorado to whom plaintiff showed the property. Derr then interested Messrs. Nichols and Rosenfield in the property. Plaintiff showed Rosenfield the property in such a way as to cause Rosenfield to be interested in the same, resulting in Rosenfield's making an offer to defendant which was not accepted. After Derr saw defendant at St. Joseph he secured an option from defendant to buy the property for $ 15,000. This option was extended from time to time and expired three days prior to the consummation of an agreement between defendant and Derr, Nichols and Rosenfield, who purchased the property from the defendant for $ 15,000 and had the title of the same conveyed to a corporation which they formed. The purchase price was paid partly in cash. The corporation soon failed. Plaintiff, hearing of the sale, demanded of the defendant the difference between the price quoted him by defendant, nine thousand dollars, and the amount for which the property was sold. Defendant refused to pay the same, resulting in this suit.

Defendant's version of the transaction was that plaintiff simply wrote him asking what he would take for eighty acres of the property (the whole being one hundred and twenty acres) and that he answered, "I would take nine thousand dollars cash, no commission" for the eighty.

The petition declares upon an express contract whereby defendant employed plaintiff to sell the property on commission. The material allegations of the petition are as follows:

"Plaintiff further alleges that in the late summer or early fall of the year 1917 defendant placed said real estate in the hands of plaintiff, who was a real estate agent, to sell for him, and agreed that if plaintiff would find a purchaser who was ready, willing and able to buy said land at a price in excess of nine thousand dollars ($ 9000), that the defendant would allow and pay to plaintiff as his commission for finding such purchaser any sum over and above the said sum of nine thousand dollars ($ 9000), for which defendant might sell said land to such purchaser.

"Plaintiff further alleges that pursuant to said employment he spent much time and effort to find a purchaser for said land, and in the said fall of 1917 he found one C. M. Derr, to whom he showed said real estate and...