Bird v. Rowell

• Decision Date: 01 June 1914
• Docket Number: No. 11093.,11093.
• Citation: 180 Mo. App. 421,167 S.W. 1172
• Parties: BIRD v. ROWELL.
• Court: Missouri Court of Appeals

167 S.W. 1172

180 Mo. A. 421

BIRD v. ROWELL.

No. 11093.

Kansas City Court of Appeals. Missouri.

June 1, 1914.

1. BROKERS (§ 64) — COMMISSIONS — WHEN EARNED.

A broker employed to procure a purchaser, who obtains a purchaser who is financially able to purchase, and who enters into an agreement to purchase on the terms named, has earned his commission, though the purchaser subsequently refuses to carry out the contract.

2. BROKERS (§ 74) — COMMISSIONS — WHEN EARNED.

Where a broker, employed by defendant and a third person to procure a sale or exchange of their respective lands for a commission, induced them to enter into a valid contract for an exchange with knowledge that both were liable for commissions, and defendant was financially able to carry out his contract, but without legal excuse refused to do so, the broker could not recover from defendant for the amount of commission the third person had contracted to pay on the theory that the defendant had defeated the broker's right to recover from the third person.

3. BROKERS (§ 82)—ACTION FOR COMMISSIONS —PLEADINGS—ISSUES.

Where, in an action by a broker for damages for defendant's act depriving the broker of the right to a commission from a third person, the pleadings showed that the broker was the agent of defendant and the third person to sell or exchange their lands, and that he induced them to enter into a valid contract of exchange, and that defendant refused to carry out the contract so that the broker could not collect the commission from the third person, evidence of the invalidity of the contract because of the failure of the wife of defendant to join therein because the land was homestead was inadmissible.

4. PLEADING (§ 8)—CONCLUSIONS.

A pleading alleging that a contract is valid and binding is an allegation of a mere legal conclusion.

5. PLEADING (§ 32) — PLEADING WRITTEN CONTRACT—EFFECT.

Where a written contract is pleaded and set out in full, the facts are stated, from which a legal conclusion follows.

6. PLEADING (§ 349) — ANSWER — REPLY — JUDGMENT ON PLEADINGS.

Where, in an action by a broker for damages caused by defendant depriving the broker of a commission from a third person earned by inducing defendant and the third person to enter into a contract for the exchange of their real estate, and that defendant refused without legal excuse to perform, defendant in his answer alleged the execution of a written contract for the exchange, and that the contract was binding on defendant and the third person, that defendant was financially able to comply with the contract, and that by reason thereof plaintiff could recover the commission from the third person, and the broker replied admitting the execution of the contract and defendant's financial ability to comply therewith, but denied every other allegation in the answer, defendant was entitled to judgment on the pleadings.

7. PLEADING (§ 174)—ANSWER—REPLY.

Where an answer alleged the execution of a contract and set out the contract and then alleged that it was binding on both parties thereto, a reply specifically admitting the contract set out, followed by a general denial, did not deny the legal conclusion of the validity of the contract, but to do so the reply must set up the facts showing invalidity.

8. BROKERS (§ 58) — COMMISSIONS — WHEN EARNED.

Where a broker, employed by defendant and a third person to sell or exchange their respective lands, induced the parties to enter into a contract for the exchange of their lands, but the contract was unenforceable, the broker had not earned his commissions.

Appeal from Circuit Court, Johnson County; A. A. Whitsett, Judge.

Action by Charles Bird against Joseph Rowell. From a judgment for plaintiff, defendant appeals. Reversed in part, and affirmed in part.

N. M. Bradley and J. W. Suddath & Son, all of Warrensburg, for appellant. Chas. W. Sloan and L. M. Crouch, both of Harrisonville, for respondent.

TRIMBLE, J.

Plaintiff, a real estate broker, brought this suit in two counts. The first is to recover the sum of $125 agreed upon as plaintiff's commission from defendant for bringing two landowners together and bringing about an exchange of defendant's farm for a farm belonging to one Wolfe; and the second is to recover the sum of $500 damages for causing the plaintiff to be defeated from collecting that amount of Wolfe as commission due from him. Both defendant and Wolfe knew that plaintiff was acting for both in the trade and consented that he should receive a commission from each, so there is no objection on that score.

The first count, after stating that plaintiff was a real estate broker, alleged that defendant was the owner of a farm of 68 acres in Johnson county, specifically describing it; that Wolfe was the owner of 320 acres in Cass county; that plaintiff had the farms of both for sale or exchange; that by his exertions he brought defendant and Wolfe together and induced them to enter into a contract for the exchange of their respective farms upon the terms therein stated; that by said agreement of exchange defendant was to pay plaintiff $125 and Wolfe was to pay plaintiff $500; that Wolfe, was ready, able, and willing on his part to consummate the exchange, but, without fault on his part, was unable to do so because of the refusal of defendant, without legal excuse, to complete the exchange; that thereupon plaintiff demanded of defendant the $125 due from him, which was refused, and for which judgment is prayed.

In the second count the foregoing preliminary facts as to the ownership of the two farms, the agency with each of the two men, the agreement to exchange farms, the commission to be paid by each, were all alleged to be true, and plaintiff then averred that the title of Wolfe to his farm was merchantable and good; that Wolfe was ready, able, and willing to perform said agreement and comply with all terms thereof, but, by reason of the failure and refusal of defendant to carry out said contract on his part, plaintiff has been unable to collect the $500 commission from Wolfe and has received no commission from him, by reason whereof plaintiff is damaged in the sum of $500, for which judgment is asked.

The answer to the first count was a general denial. The answer to the second count was, first, a general denial, and then it was alleged that Wolfe and defendant entered into a contract in writing for the exchange of their respective farms, duly signed and acknowledged by both, and the answer set out the contract in full showing specific description of both farms and the terms of the trade. The answer to said second count further alleged that said written contract was legal and binding on both Wolfe and defendant; that defendant was at that time financially able to comply with said contract; that it was executed and delivered by both parties and also executed for the benefit of plaintiff; that by reason of said facts plaintiff was entitled to recover the $500 of Wolfe because he (plaintiff) had performed the services he agreed to perform, and for that reason defendant is not liable, hence he prayed to be discharged with his costs. With this answer defendant filed a written offer to allow judgment to be entered against him on the first count for $125, which offer had been duly served upon plaintiff's attorney. To the answer plaintiff filed a reply admitting that defendant and Wolfe made and executed the written contract set out in the answer, and also admitting that defendant was at that time financially able to comply with said contract, and denied every other allegation in the answer.

When the reply was filed containing these admissions that the contract plaintiff had secured for Wolfe was a written contract executed by both of them, and that defendant was financially able to comply therewith (in which case Wolfe could hold defendant liable in damages for failure to perform), defendant filed a motion for judgment on the pleadings. This was overruled, and exceptions were saved. The trial was had, and the evidence showed, without contradiction, the facts to be as shown in the pleadings.

At the close of the evidence, defendant demurred to the evidence as to the second count. This was overruled. Thereupon plaintiff prayed the court to give the jury peremptory instructions to find for plaintiff on each of the counts in the petition, which the court gave. The jury, in obedience to said instructions, returned a verdict for $125 on the first count and for $500 on the second count, and judgment was rendered in accordance therewith. Defendant appeals, claiming that he is only liable for the $125, judgment for which he offered to allow entered against him.

Under the facts of this case,...