Burks v. Woods

• Decision Date: 08 December 1925
• Docket Number: No. 18946.,18946.
• Citation: 279 S.W. 168
• Parties: BURKS v. WOODS.
• Court: Missouri Court of Appeals

279 S.W. 168

BURKS v. WOODS.

No. 18946.

St. Louis Court of Appeals. Missouri.

December 8, 1925.

Appeal from Circuit Court, Pike County; Edgar B. Woolfolk, Judge.

"Not to be officially published."

Action by H. V. Burks against W. O. Woods. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Hostetter & Haley, of Bowling Green, for appellant.

Andrew J. Murphy, Jr., and Ras Pearson, both of Louisiana, Mo., and Prank J. Duvall, of Clarksville, for respondent.

BECKER, J.

This is a suit for commissions on the sale or exchange of real estate. Judgment resulted for the defendant, and plaintiff appeals.

The record discloses the following undisputed facts: The defendant, Woods, was the owner of a 464-acre farm situated in Pike county, Mo. J. H. Dierker was the owner of a battling plant and some real estate in connection therewith at Troy in Lincoln county, Mo. Through the efforts of Burks, the plaintiff, the defendant, Woods, and said Dierker entered into a written contract, whereby the defendant, Woods, was to sell or exchange his land in Pike county for Dierker's bottling works and real estate situated in Troy, Mo., under certain terms and conditions satisfactory to said Woods set out in said written contract. It further appears that W. J. Buchanan aided Burks, the plaintiff, in getting the parties together. The defendant Woods admits that he promised Burks and Buchanan that:

"If you will make me a trade that is satisfactory I will treat you right. * * * If the deal goes through I will treat you and Burks right; that was all there was said between I and Burks and Buchanan with reference to the commission."

We quote the following from defendant's cross-examination:

"Q. You did agree that if the deal was made you would pay commission? A. To treat him right."

"Q. You meant by that you would `Say him commission? A. If the deal went through, yes."

"Q. You went into it with that understanding that you mentioned, if the farm was sold you would have to pay some commission? A. Yes."

It is further admitted that before the day upon which the deeds were to be passed that the said Dierker committed suicide, but left a solvent estate worth some $15,000 or $16,-000. The defendant further admitted that after the death of Dierker he employed attorneys to enforce the contract in question, but that after the attorneys could not put the deal through he effected a compromise with the executrix of Dierker's estate, whereby he accepted, properties, by the sale of which he obtained $1,970, as damages on account of the breach of this contract of exchange of properties.

It is further admitted that Woods held a sale of personalty on his farm the day prior to that on which Dierker committed suicide, and that at this sale Dierker purchased cattle and other property aggregating $4,000, which property neither Dierker nor his estate ever took possession of or paid for, and that at said sale Burks, the plaintiff, bought a cow at the agreed price of $55, which, according to Burks, was to be paid for out of his commission.

Woods, in the present suit, set up a general denial as his answer and filed a counterclaim for $55 for the cow purchased by Burks.

As stated above, on the hearing of the case the jury found for the plaintiff on defendant's cause of action, and for the defendant on his counterclaim for $25.

In our view, from the conceded facts in the case, it is apparent that, through plaintiff's efforts, Woods, the defendant, and Dierker entered into a valid enforceable contract for the exchange of properties, so that upon the death...