Blackburn-Ens, Inc. v. Roberts
| Decision Date | 19 May 1964 |
| Docket Number | No. 31565,BLACKBURN-ENS,31565 |
| Citation | 379 S.W.2d 630 |
| Court | Missouri Court of Appeals |
| Parties | , INC., Doing Business as North County Realty Company, (Plaintiff) Appellant, v. Raymond ROBERTS and Lillie Roberts, (Defendants) Respondents. |
Ray Carleno, Carleno & Nick, Ferguson, for appellant.
Alvin H. Juergensmeyer and Darryl L. Hicks, Warrenton, for respondents.
This is an action whereby the plaintiff seeks a judgment for a commission alleged to be due under an agency contract with the defendant for the sale of real estate. There was a verdict and judgment for the defendants, and the plaintiff prosecutes this appeal.
The evidence presented reveals the facts to be that the corporate plaintiff was doing business as the North County Realty Company. Its president was a Mr. Blackburn. The defendants owned the house located on Lots 1 and 2 of Honey Locust Acres, in St. Louis County. The house and the lots fronted on Old Florissant Road. The defendants also owned Lot No. 3 in Honey Locust Acres, which was directly to the rear of and adjoining Lots 1 and 2. The defendants were husband and wife, and while the property was in the name of Lillie Roberts, the wife, they considered it as jointly owned. They desired to sell the house and Lots 1 and 2. They wanted a quick sale as they were in arrears in taxes and were unable to meet the mortgage payments.
They planned to sell Lots 1 and 2, upon which the house was built, and retain Lot 3 for the purpose of building another house. Lot 3 had about $600 to $800 worth of cut building stone upon it. This was left over from another house that Roberts had built. In October of 1960, the defendants had their own 'For Sale' sign up, and a man named Stanley K. White, seeing the sign, had stopped to look at the house. But the defendants were not there. Mr. White looked in the garage, and in doing so let the defendants' dog out. He telephoned defendant Roberts and apologized for having let the dog out, and told him the purpose of his visit to the house.
On November 11, 1960, the defendants entered into a contract with the North County Realty Company, giving that company the exclusive right, for sixty days, to sell the house and Lots 1 and 2 for $27,500. The contract is printed on a card. On one side of the card is a description of the property to be sold, and on the other side is the agency agreement and the signatures. Lots 1 and 2 are set out in the description. In the top corner, apart from the place for the description of the property, there is written 'xtra lot 100 X 200'. The defendant Roberts testified that this was not on the card at the time it was signed, and was added without his knowledge.
The plaintiff put up its sign on the property and advertised it. One of the plaintiff's salesmen showed several people through the house, and among them was the Mr. White with whom defendant Roberts had talked by phone some time prior to the date of the listing agreement. The salesman introduced Mr. White to Mr. Roberts. Mr. White had seen the plaintiff's sign on the property and arranged to inspect it. He was not interested in buying, as he thought that the price asked was too high.
No sale was made by the plaintiff, and in the latter half of January, the defendant Roberts took down the plaintiff's For Sale sign and put back his own, which read, 'For Sale by Owner.' Mr. Blackburn came by and, according to the plaintiff, they agreed that the listing contract was terminated. He said that he told Blackburn that he would still pay him a commission if Blackburn would sell the property. Blackburn put his company's sign in the back of his car and drove away with it.
Later, and around the first of February, Mr. White was driving by the property and saw defendant Roberts in the yard. Mr. White stopped to talk to Roberts, and asked him if the house was still for sale. Roberts told him at that time that there was a mortgage against the house which he could not meet, that he owed two years' taxes, and that he was willing to sacrifice to make a sale. Roberts told White that he would include the third lot, which originally was not included in the deal, and he agreed to sell the three lots and the house for $27,000, which was $500 less than the amount originally asked for the two lots. The transaction was closed with White, through the Bank of Ferguson, on March 10, 1961, and the Roberts transferred to the Whites Lots 1, 2, and 3 for a total sum of $27,000. From this amount the mortgage and back taxes were paid off, leaving a net total to defendants of $3,032.48.
Mr. Blackburn, the president of the corporate plaintiff, testified that the contract was not terminated at the time of the sale, and that it could only be terminated by sixty days' notice in writing, and, as stated, he claims a commission of 6 percent upon the sale price of $27,000.
It is first contended by the appealing plaintiff that the court erred in refusing to direct a verdict for the plaintiff on plaintiff's motion made at the close of its case and at the close of all of the evidence in the whole case. This point is predicated upon two theories. One is that the contract was not terminated because it provided that 'agency shall continue for two months from the date hereof, and thereafter until terminated by us upon and after sixty days' notice.' The 'us' referred to is of course the owners who signed the contract. This is no bar to the sellers and the agent agreeing to terminate the contract, and that is what happened according to the defendant's testimony. It therefore follows that this clause of the contract afforded no reason for a directed verdict against the defendants.
The second point relied upon is that the contract provided that the agent was to receive a commission if a sale was made within sixty days after the term of the contract to any person procured by any one during the term of the contract. This clause is to protect the agent from a loss of his commission on a sale, if the sale under negotiation could not be terminated within the term of its agency, or if the seller, in order to defraud the agent of his commission, intentionally delays closing a sales agreement until the agency contract expires. It is, however, limited to a purchaser 'procured' during the term of the agency. In discussing the meaning of the word 'procure', as used in these contracts, our Supreme Court stated in Kyle v. Kansas City Life Ins. Co., 356 Mo. 331, 201 S.W.2d 912, 1. c. pp. 913-914:
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