Carpenter v. Rynders

• Decision Date: 31 March 1873
• Citation: 52 Mo. 278
• Parties: JAMES M. CARPENTER, Respondent, v. JOSEPH RYNDERS, Appellant.
• Court: Missouri Supreme Court

52 Mo. 278

JAMES M. CARPENTER, Respondent,

v.JOSEPH RYNDERS, Appellant.

Supreme Court of Missouri.

March Term, 1873.

Appeal from St. Louis Circuit Court.

Fisher & Rowell, for Appellant.

Title cannot be shown by experts. (30 Mo., 310; 28 Mo., 407; 28 Mo., 496; 24 Mo., 113; 9 Mo., 603; 1 Greenl. Ev., § 441.)

D. Breck Ramsey, for Respondent, cited: Bailey vs. Chapman, 41 Mo., 538.

VORIES, Judge, delivered the opinion of the court.

This action was brought before a Justice of the Peace to recover the amount of an account filed for commissions for the sale of a house and lot on McLure Avenue. A trial was had before a Justice, where the defendant recovered a judgment.

The plaintiff appealed to the St. Louis Circuit Court, where on a trial anew, he recovered judgment for $75; from this judgment defendant appealed to General Term, where the judgment rendered at the Special Term was affirmed, and the defendant appealed to this court.

The facts shown by the record are, that plaintiff is a real estate agent, and that as such the defendant employed him to make sale for him of a house and lot at the price of six thousand dollars. There is some conflict in the evidence in reference to the exact terms of the contract, but the evidence tends most strongly to show that plaintiff undertook to sell the house and lot for 2 1-2 per cent. on the price, and that the plaintiff was to also write the deed without further charge, and that nothing was to be charged unless plaintiff made a sale. The evidence further shows, that the plaintiff did effect a sale of the property, which was satisfactory to the defendant, and that one hundred dollars of the purchase money was paid to defendant as part payment; but that when the defendant was about to make the deed, the purchaser upon examination found that the defendant's title to the lot was defective. The defendant after this proceeded to the State of Ohio and obtained deeds which perfected his title, but that in this time the purchaser made different arrangements, and refused to take the house and lot. That upon consultation between plaintiff and defendant, the hundred dollars paid was returned to the purchaser. The purchaser testified, that he bought the lot in good faith, and would have taken it and paid for it, if the title had been good, or if defendant could have perfected his title before he had made other arrangements about the purchase of property. Mason the purchaser, during his examination as a witness, stated amongst other things, that after he had made the trade with Carpenter, he saw Rynders and talked it all over; he then made an examination of the title and found it bad, that Rynders had no title at all as it stood. This testimony was objected to by the defendant, as incompetent and secondary. The objection was overruled, and the defendant excepted. At the close of the evidence, the court at the instance of plaintiff instructed the jury as follows: “If the jury believe from the evidence, that the plaintiff James M. Carpenter was a real estate agent and broker in the City of St. Louis, and that as such he was employed to sell the real estate in question for $6,000; that he found a purchaser, negotiated a sale, and that the purchase was not completed between the purchaser and defendant on the ground that the title was defective, which defect in the title was not known to the plaintiff at the time he undertook the sale of said property, and he, the said plaintiff, did all he could in the performance of his undertaking, and was prevented from accomplishing the sale, only by the defect of the title, and that the amount charged was a reasonable compensation for such services, they will find for the plaintiff.”

To the giving of this instruction the defendant objected and excepted.

The court then at the instance of the defendant instructed the jury as follows: “If the jury find from the evidence, that the plaintiff knew the imperfection in the title to defendant's property at the time he undertook to sell the same, or before the transaction with Mason, he cannot recover in this case.”

After the...