Berberet v. Myers

Decision Date09 February 1912
PartiesBERBERET et al. v. MYERS et al.
CourtMissouri Supreme Court

Woodson, J., dissenting.

In Banc. Appeal from Circuit Court, Carroll County; John P. Butler, Judge.

Suit by Nicholas J. Berberet and another against Georgia Myers and others. From a decree for plaintiffs, defendants appeal. Affirmed.

F. E. Roberson and A. Doneghy, for appellants. L. F. Cottey and F. H. McCullough, for respondents.

LAMM, J.

Equity. Relief sought, specific performance of a contract to convey land in Knox county.

The bill, summarized, counts on the following facts: That defendants owned the following land in fee simple: "The west end of the north half (240 acres), the southeast fourth of the northeast quarter (40 acres), and the northwest fourth of the southwest quarter (40 acres), of section fourteen (14), township sixty-two (62), range twelve (12), west of the fifth principal meridian, and containing in the aggregate 320 acres, more or less, in Knox county, Missouri." And on the 9th day of February, 1904, they executed a contract, a warrant of authority to a certain partnership, real estate agents, doing business under the name and style of the Parsons Real Estate Agency of Edina, Mo., authorizing said agency to enter into a written contract with a purchaser in defendants' behalf and names to sell and convey said land, thereby agreeing that if their agents sold the land, they, on their part, would make a good and satisfactory deed, and (if required) give a clear abstract of title. As remuneration the agents were to receive $1 per acre "out of the first money collected." The land to be sold at a sum to net defendants $11,200. If sold by other parties, defendants were to pay the agency $25 to cover cost of advertising. If defendants wished to withdraw the land from market or advance the price, then, in such event, defendants agreed to give their said agents written notice 30 days prior to such withdrawal or advance. They further agreed to pay said agents $25 for advertising should they withdraw the real estate from market prior to January 1, 1905; no change in price or terms by defendants to work a forfeiture of commissions, and the terms of sale contract to be cash on executing a deed. Alleging that while said contract of agency was in full force, and with no notice to the agents or either of them by defendants or any of them of the withdrawal of the land from market or an advance in price, defendants' said agents in their names contracted in writing with plaintiffs on September 12, 1906, to sell the land at a total price which, deducting commissions, made the net contract price, whereby $1,000 were to be paid on the execution of the contract of sale, the balance when deed and possession were delivered on or before March 1, 1907; that defendants, by said sale contract, agreed to furnish an abstract of title and execute a good and sufficient warranty deed and deliver possession on or before March 1, 1907; that on the contract date plaintiffs paid to said agency for and on behalf of defendants the said sum of $1,000, and afterwards and before March 1, 1907, offered and tendered to defendants and each of them the amount of the money due them respectively and demanded a deed, and again on March 1st they made another tender to the agency of the balance of the purchase price, and through defendant's said agents demanded of defendants the execution of a deed...

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85 cases
  • Third Nat. Bank of St. Louis v. St
    • United States
    • Missouri Supreme Court
    • June 10, 1912
    ... ... Who should know them better than he? Somewhat agreeably to the figure of Bleckley, J., in Hull v. Myers, 90 Ga., loc. cit. 677, 16 S. E. 653, so we say: Common sense does not always make law, but law and common sense are likely to be one and the same ... The foregoing propositions are so trite and elementary they need no aid from a line of cases. We refer to a late one (Berberet v. Myers, 144 S. W. 824, just handed down and not yet officially reported) and pass the matter by ...         It is on such premises we ... ...
  • Jewell Realty Co. v. Dierks
    • United States
    • Missouri Supreme Court
    • May 25, 1929
    ... ... Tracy v. Aldrich, 236 S.W. 347; Edwards v. Watson, 258 Mo. 631; Berberet v. Myers, 144 S.W. 824; Union Bag & Paper Corporation v. Bischoff, 255 Fed. 187; Tracy v. Aldridge, 236 S.W. 347; Hutton v. Sherrard, 183 Mich. 356, ... ...
  • Frederich v. Union Electric L. & P. Co.
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    • Missouri Supreme Court
    • April 17, 1935
    ... ... 1166; Kirkpatrick v. Pease, 202 Mo. 493, 101 S.W. 657; Kilpatrick v. Wiley, 197 Mo. 123, 95 S.W. 213; Hargis v. Smith, 178 S.W. 72; Berberet v. Myers, 240 Mo. 117, 144 S.W. 824; Evans v. Evans, 196 Mo. 23, 93 S.W. 969; Lemp Hunting & Fishing Club v. Hackman, 172 Mo. App. 549, 156 S.W. 791; ... ...
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    ... ... Scullin Steel Co. v. Iron Co., 308 Mo. 453; Beheret v. Myers, 240 Mo. 58; Willoughby v. Brandes. 297 S.W. 54; Bank of Dearborn v. Gabbert, 291 S.W. 142; J.B. Colt Co. v. Farmer, 286 S.W. 399. (6) It is not ... ...
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