Brown v. Smith

• Decision Date: 16 May 1905
• Citation: 87 S.W. 556,113 Mo. App. 59
• Parties: BROWN v. SMITH et al.
• Court: Missouri Court of Appeals

87 S.W. 556

113 Mo. App. 59

BROWN v. SMITH et al.

St. Louis Court of Appeals. Missouri.

May 16, 1905.

BROKERS—OFFER AND ACCEPTANCE—CONTRACT —CONSTRUCTION—PERFORMANCE —COMMISSIONS.

1. Where defendants wrote plaintiff, offering to pay him 10 per cent. commission for sales of land made for defendants, at a specified price, to persons obtained by plaintiff that defendants had no agreement with, and plaintiff immediately began to search for purchasers, whom he succeeded in procuring, his acts constituted a sufficient acceptance of the offer.

2. Where a real estate broker procured a purchaser for certain land, who was ready, able, and willing to purchase on defendants' terms, and defendants refused to convey because of their inability to make title to a part of the land, and thereafter sold the same to another at a higher price, plaintiff performed his engagement, and was entitled to commissions.

Appeal from Circuit Court, Stoddard County; Jas. L. Fort, Judge.

Action by H. M. Brown against Charles M. Smith and others. From a judgment for plaintiff, defendants appeal. Affirmed.

This case originated in Mississippi county, and by change of venue was transferred to Stoddard county, where it was tried by a jury in the circuit court. Plaintiff recovered a judgment, and defendants appealed. It is a suit by a real estate broker for commissions claimed to have been earned by him for selling certain lands. The petition, in substance, avers that plaintiff is a real estate broker whose business is selling lands for commissions; that defendants owned certain lands (describing them) in Mississippi county, and that on March 9, 1902, defendants agreed in writing that, in consideration of plaintiff selling said lands or procuring a purchaser therefor at the price of $35 per acre, they would pay plaintiff 10 per cent. of the total amount of the purchase price on account of said sale, as commission; that, acting upon this agreement and employment, plaintiff procured a purchaser who was ready, able, and willing to buy said lands, and that defendants refused to convey the lands to the purchaser, wherefore he asks judgment for his commissions.

The evidence developed that plaintiff is a real estate broker at Charleston. Defendants, who are in business at Sikeston, in Scott county, owned 440 acres of land in Mississippi county near Dog Wood Church, which they desired to sell; that, on the day given in the letter hereinafter set out, C. M. Smith, one of the defendants, acting on behalf of himself and his codefendants, wrote plaintiff the following letter:

"Sikeston, Mo., Mar. 9, '02. H. M. Brown, Charleston, Mo.—Dear Sir & Friend: Your letter to hand and contents noted. If you can sell our 440 a. tract of land, east of Dog Wood Church, in Miss. Co., for thirty-five dollars per acre, to any man that we ain't on a trade with, we can allow you ten per cent. This will apply also to any other lands which you may sell for us; must be sold, however, to men that we haven't agreed to pay anybody else a commission. Always notify us by phone or wire of the party's name that you expect to show land to; 310 a. of this land is cultivated, about 216 acres in wheat now, bal. all deadened; raises fine wheat and corn. Respectfully, C. M. Smith."

This letter was the contract declared on in the petition. It was not filed with the petition originally, but was so filed by leave of court before the trial. Acting upon this letter, plaintiff found two brothers, Wm. L. Ponder and Phillip J. Ponder, prospective land purchasers, and took them out and showed them the 440 acres of land referred to in the letter. The plaintiff notified the defendants of having the buyers, and one of the defendants, at the instance of the others, came and joined the party, and went with them to the lands, aiding and assisting in showing and talking them up. They looked over the lands carefully, and discussed the good and bad features thereof, with the result that Wm. L. Ponder bought 200 acres of the land, for which in due time he paid the defendants, and on this 200 acres defendants paid plaintiff his commission. The evidence shows that the other brother, Phillip J. Ponder, while he was a prospective buyer, was not yet quite ready to close a deal for the land, as he had not sold his farm in another county; that he expected and intended to sell his farm and buy in Mississippi county. That on the same day and at the same time, and as a result of the same negotiations by which Wm. L. Ponder bought the 200 acres, Phillip J. Ponder took an option in writing upon the 200 acres of the remaining land owned by defendants there, which option was attached to the contract of sale executed by defendants to Wm. L. Ponder, which he had that day purchased and afterwards paid for. The option taken by Phillip J. Ponder upon the 200 acres of land, and about the sale of which this controversy arose, is as follows:

"The said Smiths agree to sell to Phillip J. Ponder all of the northwest quarter, and the northwest quarter of the southwest quarter of section nine (9) in township twenty-five (25), north of range fifteen (15) east, in Mississippi county, Missouri, at the price of thirty-five dollars per acre, as soon as they can make a good title to the same, the time not to exceed six months. C. M., J. C. and W. R. Smith."

It appears in the evidence that, at the time this option was given to Phillip J. Ponder, 80 acres of this land was in litigation in the suit of Phillips v. Presson, which was then pending in the Supreme Court of Missouri, and was afterwards decided adversely to the defendants in this case, and is reported in 172 Mo. 24, 72 S. W. 501. Because of this litigation, defendants refused to make a present sale of the 200-acre tract of which it was a part to Wm. L. Ponder, who desired it in preference to the 200 acres which he purchased, but that defendants made assurances to the effect that they could and would perfect the title to these 80 acres in six months' time, and be able to convey good title thereto within the six months. Phillip J. Ponder returned to his home, and proceeded to and did sell his farm, preparing to take the lands contracted for in said option. In the meantime defendants tried to buy the adverse title to the 80 acres in litigation, and offered $500 in cash and $300 in an account to Mr. Russell, attorney for the Phillips heirs, who held the adverse title. This offer was declined, and Mr. Russell, representing his clients, asked defendants $1,000 for their title to said lands. Defendants did not feel like paying $1,000, therefore no purchase thereof was made. About the 1st of September, 1902, and 15 days before the expiration of the option on said lands, Phillip J. Ponder, having disposed of his farm, came to Mississippi county with the ready cash to close the deal for the lands. He called upon defendants, and not only offered to take the lands, but insisted upon defendants' perfecting the title and conveying the lands to him. He then had the money, and was ready, able, and willing, and, in fact, was anxious, to procure a deed for the lands and pay cash therefor, but defendant refused to convey, saying they could not get the outstanding title to the 80 acres. Mr. Ponder then offered to take the 120 acres at the agreed price, the title to which was not in question, but defendants refused to convey this, claiming that, as they could not perfect the title to the 80 acres, this rendered the option void, and therefore they were not bound to convey any of the lands. It transpired, however, that about August 14th, a couple of weeks before Ponder came to close the deal, and a month before the option expired, defendants had contracted the 120 acres mentioned to one John Anderson for $40 an acre, and a month later, after the option expired, conveyed the deed to Anderson.

Defendant C. M. Smith, who transacted the principal part of the business for the defendants in this matter, testified as to what occurred when Ponder came to see him, as follows: "Q. You made no further effort to get that land? A. Yes, sir; I made another effort after that. I went to Clark Russell myself, and he told me he would not take less than $1,000, and I told him I would not do that; but when Mr. Ponder came over and wanted the land, I went to Charleston and offered him $1,000, but he would not take it. Q. Well, you didn't tell Ponder anything about your negotiations with Anderson, did you? A. Yes, sir; I told Mr. Ponder at that time that that land was sold to John Anderson, if it wasn't taken under this option now. I says, `Mr. Ponder, we wanted to treat you like a gentleman,' and I says, `To convince you I am sincere about it, I will let you go and see Mr. Russell, and I will pay $1,000 if that will settle it, and I will deed you the land.'"

Further explaining, defendant testified as follows: "A. Yes, sir; the last time was after I gave this gentleman the option I went to work on it; I got Joe Russell to talk to Clark about it, and, after he told me what Clark said, I did not know how to manage it. I wanted to comply with this contract, and I went to Clark Russell myself, and he said he would not take less than $1,000. Q. When was that? A. Along in the spring. Q. You wasn't willing to give that then? A. No, sir. * * * Q. You sold this land to Anderson on the 16th of September, didn't you? A. I sold it to him back of that. Q. You conveyed it on the 16th of September, 1902? A. Yes, sir. Q. Because the Ponder option run out then? A. Can I explain that? Q. Yes, sir, you can if you want to; go ahead. A. I want to show the real position of it. Mr. Russell and Mr. Anderson and everybody knows that I wanted the full six months to perfect that title to the 80 acres within that time, so this man could have that land—that 200 acres—but we could not do it, and I told Mr. Anderson the option was void, and I would deed it to him on the 16th of September, which was done."

The evidence shows that plaintiff,...