Byers Bros. Real Estate & Ins. Agency, Inc. v. Campbell

Decision Date02 November 1959
Docket NumberNo. 22907,22907
Citation329 S.W.2d 393
CourtMissouri Court of Appeals
PartiesBYERS BROS. REAL ESTATE & INSURANCE AGENCY, INC., a Corporation, Appellant, v. H. Howard CAMPBELL and Suburban Realty Company, Inc., a Corporation, Respondents.

Thaine Q. Blumer (Blumer & Wright), Kansas City, for appellant

Robert E. Coleberd, Arthur R. Kincaid (Hale, Coleberd, Kincaid & Waters), Liberty, for respondent.

HUNTER, Judge.

This is an action for damages by plaintiff-appellant, Byers Brothers Real Estate and Insurance Agency, a corporation, against defendants-respondents, Suburban Realty Company, Inc., a corporation, and its employee H. Howard Campbell.

According to the petition defendant H. Howard Campbell acting for his employer Suburban Realty Company, Inc., and with its knowledge and consent 'by the use of deceit, fraud and malicious misrepresentations, did induce the defendants M. T. Browning and Agnes G. Browning to breach the contract' * * * 'that defendants M. T. Browning and Agnes G. Browning were aided, abetted and induced to breach said contract by the defendant H. Howard Campbell,' * * * 'that the acts of the defendants * * * amounted to a conspiracy among the defendants to breach the lawful contract * * *.' The petition asked both actual and punitive damages. Upon trial to a jury plaintiff received a verdict for $100 actual damages and $4,500 punitive damages. The trial court sustained defendants' motion for a new trial, and plaintiff has appealed.

The controversy arose as a result of the efforts of the Brownings to sell their house located in Clay County, Missouri. By written contract dated April 8, 1957, they employed plaintiff company to sell the house agreeing '* * * that the owner hereby appoints (plaintiff) as the sole and exclusive agent for the sale of said property' at a stated price of $8,750 or at any price agreeable to the owner. '* * * This exclusive agency contract is irrevocable for a period of 30 days * * * if the property be sold or otherwise disposed of by anyone while this contract is in effect, the owner agrees to pay the agent a commission of five (5) per cent on the gross amount of the sale * * *.'

Shortly thereafter and within the 30 days, defendant Campbell brought a Mr. and Mrs. Hughes to look at the house and they wanted to buy it. Marion T. Browning testified by deposition 'I told Mr. Campbell at that time that I had given the property exclusive to another company.' * * * 'Well, he said, 'There is nothing much I can do then,' and he went on to (his) office * * *.' The next day he returned and said he had talked it over with his superiors. 'He had this contract with him and he said if we would sign it, he said they could hold them to the contract until the exclusive was up with Byers Realty Company, and he said then we would sign the final papers and I wouldn't have to pay my commission, you know, my five per cent----' 'Question: Twice? Answer: Yes.' '* * * I said, 'I don't want to get in any trouble over this thing'; I said, 'could I take this contract over and let my lawyer look at it?' He said, 'no, that won't be necessary."

According to the testimony of defendant Campbell he was advised by the Brownings that there was a 30-day exclusive listing with another company and that when Mr. Browning found out the Hughes had enough money to purchase the house Mr Browning said, 'Well, you have a buyer. I really want to sell the place, and I will sell it to them even if it means that I will have to pay double sales commission.'

The Brownings then signed the agreement to sell to the Hughes, and, shortly after the expiration of the 30-days' exclusive contract, gave their deed to the property to the Hughes who now own and occupy the premises. The Brownings paid a 5 per cent sales commission on the $8,000 sales price to defendant Suburban Realty Company but refused to pay any commission to plaintiff.

There is substantial evidence to the effect that during the 30-day exclusive agency contract, plaintiff expended considerable time, effort, and some money in its endeavor to find a buyer for the premises. On one occasion it took a prospective purchaser, Mr. Waters, to Mr. Browning, who, according to evidence adduced by plaintiff, first stated he would sell to Waters upon certain conditions, but upon those conditions being agreed to, refused, and endeavored to discourage Waters from wanting to buy the house. Nor did the Brownings reveal to plaintiff or Mr. Waters that they had already contracted to sell their house to the Hughes for $8,000.

When the case was called for trial but prior to the swearing of the jury, plaintiff dismissed with prejudice as to the defendants, Mr. and Mrs. Browning, stating it had compromised and settled its claim against them for $300.

On this appeal by plaintiff, the defendants urge that the trial court should have sustained their motion for a directed verdict for failure to make a submissible case filed at the close of all the evidence and mentioned in their after trial motion for judgment and in their motion for new trial.

Since the entire record is before us on this appeal, and it would be useless to have a new trial if there is no submissible case, we proceed to examine this contention. See, Lilly v. Boswell, 362 Mo. 444, 242 S.W.2d 73, 77.

Defendants first say that under the evidence the Brownings are the only persons liable to plaintiff, and in the amount of $400, that being 5% of the $8,000 sales price.

In the absence of any contractual provision to the contrary, the general rule is that when the owner of real estate places it in the hands of a broker for sale he does not thereby relinquish his right to sell the property himself or through a second broker, without the first broker's aid, and without being liable to the first broker for any commission.

A different situation exists if the right to sell granted to the broker is exclusive, or if the contract provides for the broker to be compensated regardless of who may make the sale during the term of the contract. In such event the owner would be liable to the broker for the commission specified in the contract if the sale was made either by the owner alone or through another broker. Chamberlain v. Grisham, 360 Mo. 655, 230 S.W.2d 721; Howard & Brown Realty Co. v. Barnett, Mo.App., 206 S.W. 417; Keeney v. Freeman, 236 Mo. 260, 151 S.W.2d 532; Annotation, 64 A.L.R. 395, 407.

If during the agency time provided in such contract the owner himself or through another's aid contracted to sell the property but deferred the execution of the deed until the termination of this agency he would nevertheless be liable for the commission. Mercantile Trust Co. v. Lamar, 148 Mo.App. 353, 128 S.W. 20.

Ordinarily, the second broker through whose aid the sale is accomplished is not liable to the first broker for the commission provided in the contract between the owner and the first broker.

However, it is possible for the second broker to become jointly and severally liable with the owner of the property.

When the owner of the property is bound by a contract of the nature before us conspires with a second broker, who knows that there is a contract of that nature in effect, to contract for the sale of that property within the contract agency time of the first broker and to conceal that fact from the first broker in order to deprive him of the commission to which he is entitled by withholding from him the fact that such sale has been agreed to and in pursuance thereof they carry out their conspiracy, the result is an actionable conspiracy and both the owner and the second broker are liable for the resulting damages. Louis Schlesinger Co. v. Rice, 4 N.J. 169, 72 A.2d 197; Rosen v. Alside, Inc., Mo.Sup., 248 S.W.2d 638; California Auto Court Ass'n v. Cohn, 98 Cal.App.2d 145, 219 P.2d 511; Edison Realty Co. v. Bauernschub, 191 Md. 451, 62 A.2d 354; Annotations, 97 A.L.R. 1279; 26 A.L.R.2d 1227, 1284; 146 A.L.R. 1417 cf. Horn v. Seth, 201 Md. 589, 95 A.2d 312.

It is no defense in an action against the second broker that there is an available action against the owner, since the two are joint wrongdoers, and each is liable for the loss

It is fundamental that under such circumstances if the second broker acted through his agent, such agent is also liable as a co-conspirator.

Taking into account all of the evidence admitted by the trial court we rule that a submissible jury case was made against defendants.

We do not undertake to pass on the question of whether or not punitive damages may be obtained for the reason that counsel have not raised or briefed that question but have contented themselves with the broad question of whether a...

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