Bay v. Wank
Citation | 215 Mo. App. 123,255 S.W. 324 |
Decision Date | 02 April 1923 |
Docket Number | No. 14477.,14477. |
Parties | BAY v. WANK. |
Court | Court of Appeal of Missouri (US) |
Appeal from Circuit Court, Buchanan County; Thomas B. Allen, Judge.
Action by Virgil 0. Bay against Andrew Wank. Judgment for plaintiff, and defendant appeals. Reversed.
John D. Dolman, of St. Joseph, for appellant.
J. M. Johnson, of Kansas City, Wm, E. Stringfellow, of St. Joseph, and Scholer & Alford, of Kansas City, for respondent.
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 $6,000, 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, Mo., he 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 defendant's reply thereto, but plaintiff testified:
Plaintiff attempted to sell the land to two gentlemen living at Carthage, Mo., 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, Mo., and Derr suggested that he stop off at St. Joseph, Mo., 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 maybe $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, $9,000 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 80 acres of the property (the whole being 120 acres), and that he answered, "I would take $9,000 cash, no commission" for the 80.
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:
Defendant's point that the court erred in refusing to give his instruction in the nature of a demurrer to the evidence we think is well taken. We think the evidence fails to prove the express contract pleaded. It is well settled that, where an express contract is declared upon, plaintiff must recover upon the express contract pleaded or not at all. McDonnell v. Stavinson, 104 Mo. App. 191, 77 S. W. 766; Cole v. Armour, 154 Mo. 333, 350, 55 S. W. 473; Michael v. Kennedy, 136 Mo. App. 432, 148 S. W. 983; Stanley v. Whitlow, 181 Mo. App. 431, 464, 138 S. W. 840; Lewis v. Slack, 27 Mo. App. 119. The reply of the defendant to plaintiff's inquiry regarding the sale of the land does not contain any agreement to pay plaintiff a commission on all over $9,000 that he might get for the property. The defendant simply made "a net price of $9,000," and stipulated that he would pay no commission. In Johnson v. Whalen, 13 Okl. 320, 74 lac. 503, plaintiff, a real estate agent, wrote letters to the defendant, the owner of the land, asking him the lowest price that he would take for it, and if he would take $3,800 cash. Defendant answered, "$3,800 will not buy it. $4,000 cash will buy it net to me; and no less." The agent sold the land...
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