Brewer v. Gowin

• Decision Date: 18 June 1951
• Docket Number: No. 21512,21512
• Parties: BREWER v. GOWIN.
• Court: Missouri Court of Appeals

Page 275

241 S.W.2d 275

BREWER v. GOWIN.

No. 21512.

Kansas City Court of Appeals, Missouri.

June 18, 1951.

Oscar S. Brewer, Kenneth M. Myers, Kansas City, for appellant.

Reed O. Gentry, and Rogers, Field & Gentry, all of Kansas City, for respondent.

BOUR, Commissioner.

This is a suit by a real estate broker, Merl L. Brewer, against defendant, Mrs. Thelma Gowin, for a commission alleged to have been earned by plaintiff in connection with the sale of certain real estate. Verdict and judgment were in favor of defendant, and plaintiff has appealed.

During the year 1947, plaintiff was engaged in the business of selling real estate, and Thomas G. Jay, a real estate salesman, was associated with plaintiff in that business and represented her in the matter here involved. On June 28, 1947, defendant called plaintiff's office by telephone and stated that the property described below was for sale. This property was owned and occupied by defendant and her husband. Jay went to the home, inspected the house, and talked with defendant. On the same day, defendant signed a listing contract the material parts of which are as follows:

'28 June, 1947. I appoint Merl L. Brewer as my exclusive agent to sell the property described as 218 East 72d Terrace, Kansas City, Missouri, for the price of $13,750.00 on terms of cash. Owner will consider offers. This authority to be for a period of 30 days and to continue until revoked by me. In the event of a sale during this period whether by you or through anyone else, I agree to pay you the regular commission as fixed by the Real Estate Board of Kansas City, Missouri. In the event the property is sold by me, I agree to pay your company one-half of the regular commission as fixed by the Real Estate Board of Kansas City, Missouri. * * * I make the above agreement with the understanding that you are to advertise this property at your own expense and make every reasonable effort to sell the same during the life of this authority. / s/ Mrs. G. W. Gowin.'

The regular commission fixed by the Real Estate Board was five per cent of the sale price.

Jay was plaintiff's first witness. He testified: 'Mr. Gowin was very sick * * * he was at home all the time * * * and there was no real effort made on the house until we found or had attempted to find * * * a house for Mrs. Gowin. * * * We were looking for houses between $6000 and $7000, and we weren't able to find the house that she wanted at that time. Later she decided that she would move to Slater, Missouri and buy a house in that bracket, so there was actually no heavy advertising or actual showing of the house until we canvassed as to what she could buy on the market, some place she could go into after we sold her house. * * * I held the house open on week-ends whenever Mr. Gowin's condition would allow me to do so. * * * I ran a number of ads in the paper * * *.' He testified that plaintiff paid for the advertisements and identified copies of advertisements which appeared in The Kansas City Star on the following dates: Friday, August 29, 1947; Saturday, August 30, 1947; and Sunday, August 31, 1947. The advertisements described the house, gave the address, and included the following: 'Open 3-6 * * * Jay. LI 3493. Brewer, Realtor.'

Jay further testified that on the afternoon of Sunday, August 31, a number of people inspected the house, including David Talman; that he, Jay, showed Talman through the house and told him the sale price was $13,750.00, which was the price specified in the listing contract; that defendant was not there at the time; and that he had not seen Talman since that afternoon. Two days later, the owners agreed to sell the property to Talman and his wife for the price of $13,000. The contract of sale, dated September 2, 1947, was signed by defendant and her husband and by Talman and his wife.

Jay further testified that defendant called him by telephone on the morning of September 1, 1947, and told him that the Talmans had returned to the house Sunday night (August 31) after he left there, and that the Talmans 'had expressed a real interest in the house, if they could buy it with the real estate commission off, that they didn't want to pay a real estate commission'; that when he asked defendant what Talman would pay for the property she said he had offered $13,000, 'figuring that roughly' as the amount defendant would receive after paying a real estate commission of 5% on Jay's asking price of $13,750. Jay said that on the same day (September 1), he went to defendant's home and 'advised her to go ahead and sell the house to them at that as it was a good price on the house, fearing to go back to Mr. Talman and quote it to him at $13,000 through myself because he would then drop his price that much more'; that he also told defendant that he 'would assist her in every way possible in preparing the papers * * * and that we would be due our full commission after the sale was closed * * *, and she told me that she was going to sell and would pay us the full commission after the sale was closed'; that on two occasions during the following week he offered his services to defendant, but on each occasion she told him 'she was unable to talk (to him) about the transaction because of Mr. Gowin's illness.'

Jay testified on cross-examination that he would have received fifty per cent of the commission if it had been collected, and continued: 'Q. So that you have an interest in this particular lawsuit against Mrs. Gowin of fifty per cent of the amount sued for if it is recovered, is that correct? A. That's right.'

Defendant's testimony was in sharp conflict with that of Jay. She testified: 'Q. When did you first become acquainted with Mr. Talman? A. Well, the first time was when he knoncked on the door and said he understood my house was for sale. Q. What day was that? A. Well, that was close to the first of September (1947). I can't tell you the exact date * * *. It seems like it was around the first, around Labor Day sometime.' She further testified that when Talman came to her home 'around' September 1, she showed him through the house, and that Jay was not in her house on that day; that she never left her home because she 'couldn't leave Mr. Gowin'; that Jay was not at her home on Saturday, August 30, or on Sunday, August 31; that the house was not open to the public on the days last mentioned because she 'wouldn't let people in that way'; that Jay was not present at any time when Talman was there; that Talman's name was not mentioned in any conversation she had with Jay prior to the sale of the property; and that her 'discussions with Mr. Talman about the purchase of the house' extended over a period of about two weeks after he first looked at it. She testified on cross-examination: 'Q. Well, when did you agree to sell your home to Mr. Talman? A. Around the first of September sometime. I imagine about the first week in September.' She admitted that she signed the listing contract.

Mr. Gowin died on September 23, 1947. On September 29, 1947, defendant executed a deed conveying the property to Mr. and Mrs. Talman, which deed was recorded on October 1, 1947.

Plaintiff called David Talman as a witness in rebuttal. Talman said he read an advertisement in The Kansas City Star which stated that the property in question was for sale; that thereafter, and 'about the first of September, just before Labor Day,' he went to defendant's home where he found Jay, the defendant, and her husband; that he had never seen the property before; that he had never met defendant or her husband prior to that day; that Jay showed him through the house and 'pointed out its features.' He stated on cross-examination that he never saw Jay after his first visit to the house; that all 'discussions looking to the purchase of the house were carried on with Mrs. Gowin' and not with Jay; and continued: 'Q. Actually your purchase of the house didn't come about for any other reason than your discussions and negotiations with Mrs. Gowin? A. That's right.'

We return to defendant's testimony. That part of her testimony set forth above was to the effect that plaintiff's agent, Jay, was not the procuring cause of the sale of the property. During the course of the direct examination of defendant, her counsel sought to elicit testimony tending to establish a second defense, namely, that defendant revoked the listing contract within one week after the expiration of the thirtyday period mentioned in the contract. The contract, dated June 28, 1947, contained the following provision: 'This authority to be for a period of 30 days and to continue until revoked by me.' Defendant's answer specifically denied the execution of the contract as alleged in plaintiff's petition; it did not set up the defense of revocation. Counsel for plaintiff objected to the testimony referred to above on the ground 'that the defense of revocation of a contract is in the nature of a confession and avoidance, and must be specially pleaded.' Whereupon, counsel for defendant amended the answer with permission of the court by adding the following: 'The defendant further states that at the time any sale of said property was made or concluded, if any was so made, that the contract, if any, as contained in plaintiff's petition was not in effect, and had been revoked by the defendant within one week after the expiration of the thirty-day period as contained within the contract.'

Defendant then testified that 'about the first week in August' 1947, she called the Merl Brewer agency by telephone and told some unidentified person who answered the call to take the property off the market; that her friend, Mrs. Juanita Haun, was with her at the time. This testimony was corroborated by Mrs. Haun who stated that she was at defendant's home when the call was made, and that the incident occurred during the first week of August, 1947, Defendant further testified that she told Jay to take the property off the...