Bowers v. Bell

• Decision Date: 08 February 1916
• Docket Number: No. 14132.,14132.
• Parties: BOWERS v. BELL.
• Court: Missouri Court of Appeals

182 S.W. 1068

193 Mo. App. 210

BOWERS v. BELL.

No. 14132.

St. Louis Court of Appeals. Missouri.

February 8, 1916.

Appeal from Circuit Court, Ralls County; Wm. T. Ragland, Judge.

Action by Charles E. Bowers against Leo T. Bell. Judgment for defendant, and plaintiff appeals. Reversed and remanded, with directions.

B. F. Glahn, of Palmyra, and H. Clay Heather and Chas. T. Hays, both of Hannibal, for appellant. Eby & Hulse, of New London, for respondent.

ALLEN, J.

This is an action by a real estate broker to recover compensation for his services in effecting a sale of certain land belonging to the defendant. The amended petition upon which the case went to trial is in two counts. The first count declares upon an express agreement between plaintiff and defendant, whereby plaintiff was to receive any excess over and above $2,400 for which he might sell defendant's land, averring that plaintiff sold the land for $3,200 and thereby became entitled to the sum of $800. The second count of the petition seeks to recover the reasonable value of plaintiff's services in selling the land, alleged to be $800. The answer, aside from certain admissions which need not be noticed, is a general denial. The cause was tried before the court and a jury, and at the close of plaintiff's evidence the defendant moved that plaintiff be required to elect upon which of the two counts of his petition he would stand. This motion was sustained, and the plaintiff, in compliance therewith, elected to stand upon the first count. Defendant then offered an instruction in the nature of a demurrer to the evidence, which instruction the court gave. Thereupon the plaintiff took an involuntary nonsuit with leave to move to set the same aside. Thereafter the court overruled plaintiff's motion to set aside the nonsuit, and plaintiff appealed.

It appears that in 1911 one Clayton Mark, of Chicago, Ill., through an agent named Perkins, was engaged in acquiring a large acreage of bottom or low lands in Marion county, Mo., with a view of organizing a drainage district under the laws of this state. The defendant owned 160 acres of land of this character in said county, which lay within the limits of the contemplated drainage district. Plaintiff, having sold certain other lands to Mark, began correspondence with the defendant regarding the sale of defendant's lands. Plaintiff's evidence goes to show that defendant agreed that plaintiff could have, as commission, whatever he might realize over and above $15 per acre, or a total of $2,400. On October 29, 1911, in reply to a communication from plaintiff, defendant wrote plaintiff a letter in which, among other things, he said:

"Now you can investigate this farm, and you will find that I offered you a bargain in the proposition I made you. $15 per acre — $2,400; mortgage $1,400 — $1,000."

Again on December 4, 1911, in answer to a letter written by plaintiff to him, defendant wrote plaintiff, saying:

"I will give you an option for 30 days on the proposition I made you, $2,400 mortgage $1,400."

Plaintiff testified that on December 12, 1911, he and defendant met at Palmyra, Mo., by appointment. Plaintiff's testimony, in substance, is that at his request defendant then and there consented to execute a writing giving to plaintiff or his assigns an option to purchase the land at the stated price of $20 per acre, a total of $3,200; that it was understood, however, that this option was taken by plaintiff merely for the purpose of turning the same over to Mark or his representative; and that defendant would receive but $15 per acre for his land as originally agreed — that is to say, that defendant would receive $1,200 in cash, and the purchaser would assume the mortgage upon the land (which then appears to have been $1,200, instead of $1,400), the remaining $800 of the purchase price to be represented by a note secured by deed of trust and to go to plaintiff in compensation for his services if such sale were consummated. Pursuant to this agreement, according to plaintiff's evidence, the following instrument was thereupon prepared by plaintiff and signed by the parties, viz.:

"Real Estate Option.

"I, L. T. Bell, of Monroe City, for and in consideration of one dollar, do hereby grant to C. E. Bowers, of Quincy, Ill., his heirs and assigns, the privilege of purchasing on or before the 12th day of January, A. D. 1912, the following described real estate, to wit: * * *

"In case of purchase and the above-named price paid, I agree to furnish abstract showing good title and to convey said real estate by warranty deed to Edmund T. Perkins, or any person he may direct, reciting in deed such consideration as said Edmund T. Perkins shall name.

"Purchase price to be twelve hundred cash when deed is executed and eight hundred in twelve months, purchaser to assume mortgage for $1,200.

"Witness my hand and seal this 12 day of Dec.

                1911.               L. T. Bell. [Seal.]
                                   "C. W. Bowers. [Seal.]"
                

Plaintiff's evidence shows that the sale was not consummated until in March, defendant agreeing to the extension of time for closing the sale. On February 27, 1913, prior to the consummation of the sale, defendant wrote plaintiff in response to a letter from the latter regarding a certain proposal of the purchaser relating to discounting the purchase price, saying: "I would not want to have you discount the deed of trust you are to let me have." In reply to this, defendant wrote declining the proposition of discount, and, among other things, saying: "Now that sounds strange to me, your interest to be protected. * * * I have made out one deed and one deed of trust" — and afterwards was ordered to make out deed to another party and did so and also another deed of trust for you.

It appears that defendant had, in fact, executed a deed to Perkins, Mark's agent, but that later, upon request, he executed a deed directly to Mark. A new deed of trust to secure plaintiff's $800 was also executed in lieu of the one originally prepared. The latter does not appear in the record, but that finally executed ran from Clayton Mark and wife to one Longmire as trustee for Leo T. Bell, the defendant, to secure a note for $800 due one year after date.

Plaintiff's evidence shows that the sale was thus finally consummated; that defendant received $1,200 in cash, and also the note and deed of trust last above mentioned, the purchaser, Mark, assuming the payment of the aforesaid mortgage on the property. The deed of trust securing the note of $800 was at once recorded. Plaintiff testified that some time in March he met defendant in Monroe City, Mo.; that defendant then had with him this deed of trust, which had been returned to him from the recorder's office; and that he gave it to plaintiff, saying that he did not have the note with him, but would mail the same to plaintiff as soon as he returned home. Plaintiff further testified that thereafter he repeatedly wrote defendant regarding the note, but received no response to his letters; that later he went to defendant's home and requested defendant to deliver the note to him; but that defendant refused to do so, saying that he had changed his mind. It seems that thereafter the defendant, by producing the mortgage note, caused this deed of trust to be released.

It appears that the trial court forced plaintiff to a nonsuit upon the theory that the option agreement hereinabove set out constituted the written contract between the parties covering the subject-matter of the litigation, and that the extrinsic evidence adduced by plaintiff could not be permitted to vary or contradict the terms thereof. The court had permitted the various letters offered and plaintiff's parol testimony to be admitted, but at the close of plaintiff's case the court evidently rejected all of this as being incompetent because of the existence of the written option agreement aforesaid. This view we believe to be unsound, under the facts and circumstances disclosed by this record.

No one will dispute, and it is conceded by appel...