Cavender v. Waddingham

• Decision Date: 02 April 1878
• Citation: 5 Mo.App. 457
• Parties: JOHN S. CAVENDER ET AL., Respondents, v. WILLIAM WADDINGHAM, Appellant.
• Court: Missouri Court of Appeals

5 Mo.App. 457

JOHN S. CAVENDER ET AL., Respondents,

v.WILLIAM WADDINGHAM, Appellant.

St. Louis Court of Appeals, Missouri.

Apr. 2, 1878.

1. One employed brokers to purchase of certain persons certain real estate, within a certain time, and at a fixed sum, the brokers to receive as commissions a certain percentage, to be deducted from the purchase-money; the brokers effected the purchase according to instructions, and obtained from the persons named a warranty deed to their principal, which he rejected on the plea that the whole thing was a joke. Held, in an action by the brokers against their principal for damages for the loss of commissions caused by such refusal to accept the deed and carry out the contract, that it was not error to refuse to go into the question of the vendor's title and right to convey, or of the actual value of the property. Where the defence to the action is want of mental capacity to contract, testimony as to the actual value of the property is competent only when offered to show that the price offered was so exorbitant as to be inconsistent with good faith on the part of the brokers.

2. Though the written agreement to sell, obtained from the vendor by the broker, in accordance with instructions, might have been insufficient in an action for specific performance, this is no defence to an action by the broker for his commissions, where the agreement substantially complied with the instructions given the broker, was fully carried out by the vendor, and effected its purpose.

3. Where the acceptance of an offer to purchase real estate provides that the vendor shall have a reasonable time in which to vacate the premises, this is not a modification of the proposition, or a counter-proposition, but is an unconditional acceptance of the offer as made.

4. Mere excitement from the use of intoxicating liquors is not such drunkenness as will enable a party to avoid his contracts; such excitement and drunkenness must be excessive and absolute, so as to suspend the reason and create impotence of mind at the time of entering into the contract. Absolute drunkenness does not mean complete insensibility, and the use of this phrase in an instruction does not render it objectionable.

APPEAL from St. Louis Circuit Court.

Affirmed.

GEORGE P. STRONG, for appellant: Want of title or authority to convey is a good defence to this action.-- Luckett v. Williamson, 31 Mo. 57; 1 Sugden on Vend. 125, note x; Id. 400, note q; Steinhauer v. Whitman, 1 Serg. & R. 438; Roland v. Miller, 3 Watts & S. 390; Herrod v. Blackburn, 56 Pa. St. 103; Pyrke v. Waddingham, 17 Eng. Law &Eq. 538, 541; 3 Pars. on Con. (6th ed.) 378, 380. An instruction that, to avoid a contract on the ground of drunkenness, the drunkenness must be excessive and absolute, is bad.-- Thomas v. Bobb, 45 Mo. 388; Barrett v. Buxton, 2 Aik. 171; Foot v. Tewksbury, 2 Vt. 100; Pitt v. Smith, 3 Camp. 33. The acceptance of an offer must be wholly unconditional.-- Jenness v. Iron Co., 53 Mo. 20; Eads v. Carondelet, 42 Mo. 113; Bruner v. Wheaton, 46 Mo. 363; Eliason v. Henshaw, 4 Wheat. 228; Oriental In. Steam Co. v. Briggs, 4 De G. F. & J. 191; Potts v. Whitehead, 20 N. J. 55; Honeyman v. Marryatt, 21 Beav. 14; Woods Case v. Jones, 3 De G. 85. The agreement of sale being indefinite as to the description of the land, uncertain, and ambiguous, was insufficient.--Gen. Stat. 1865, p. 438, sec. 5; Brown on Stat. Fr. 396; Advent v. Farrow, 7 Rich. Eq. 383; Lindsay v. Lynch, 2 Sch. & Lef. 7; Kay v. Curd, 6 B. Mon. 101; Hurly v. Bearon, 98 Mass. 545.

ARBA N. CRANE, for respondents: Avoidance of contract on the ground of drunkenness.--1 Story on Con., sec. 87; 1 Story's Eq. Jur., sec. 231; Caulkins v. Fry, 35 Conn. 170; Belcher v. Belcher, 10 Yerg. 121. A broker is entitled to his commissions when prevented from a complete performance by the act or neglect of his principal.--Story on Ag. (8th ed.), sec. 329, note 4; Bailey v. Chapman, 41 Mo. 536; Cavender v. Waddingham, 2 Mo. App. 551. It was not error to refuse, in this action, to go into the question of the value of the real estate.-- Cadwallader v. West, 48 Mo. 494; Eyre v. Potter, 15 How. 59.BAKEWELL, J. delivered the opinion of the court.

This action is by real-estate brokers against their principal, for damages caused by his act depriving them of their commissions earned whilst in his employment. The allegations of the petition are, that plaintiffs are copartners as real-estate brokers; that, on Feb. 28, 1874, defendant employed them to purchase for him, from John A. and W. H. Scudder, trustees of Henry Ames, a lot in blocks 23 and 24 of St. Louis, fronting 183 5/12 feet on Main Street by 142 3/12 deep, on which is situated the Ames pork-house; that defendant instructed plaintiffs to effect a purchase of this property within ten days, at the rate of $600 per front foot; that it was agreed between plaintiffs and defendant that the commission should be two and a half per cent on the purchase-money; that this should be paid by the Scudders, and was to be divided by the plaintiffs and defendant, defendant to be allowed one-fifth of the commissions; that, on March 2, plaintiffs effected their purchase according to their instructions, and the Scudders executed and delivered to plaintiffs, at that date, a warranty deed to defendant for the property named, and authorized plaintiffs to deliver the deed to defendant, to receive the purchase-money, and deduct from it their commission of two and a-half per cent; that plaintiffs offered the deed to defendant on March 9, but he refused to comply with the purchase, accept the deed, or pay the purchase-money, whereby plaintiffs lost their commissions, and were damaged $4,000, for which they ask judgment.

The answer denies generally the material allegations of the petition, and sets up as matter of affirmative defence that the Scudders had no title, and no power to sell or to deliver possession of the property; and that defendant, at the time of the alleged contract, had not mental capacity to contract, and that plaintiffs knew the fact at the time.

On the trial, plaintiffs offered evidence tending to prove the allegations of the petition. Evidence was introduced by defendant, tending to show that, at the time of the alleged contract, he was on a protracted “spree;” also tending to show that, at the time of the alleged contract, he was insane from the effect of liquor, and did not know what he was about. The evidence for plaintiffs tended to show that defendant was sober enough when he made the agreement sued on, and was capable of making the contract. Defendant offered to show that the Scudders had no title to the property mentioned in their deed; and that it was worth much less than $600 per foot. This testimony was excluded by the court. There was a verdict and judgment for $2,201; from which defendant appeals.

It is contended by appellant that the court erred in rejecting the offer of defendant to show that, at the date of their agreement to sell, and of the deed executed by them, the Scudders had no title, and no power to convey the property in question. It is claimed that the gist of this action is the damage occasioned to plaintiffs by the wrongful act of defendant in refusing to accept the Scudder deed and to pay the purchase-money according to agreement; that, if the Scudders had not title, the defendant was not bound to accept their deed, and therefore committed no wrong and did no damage to plaintiffs of which they can complain. We do not think that the court was bound to go into the question of title. There is no dispute that the Scudders were in possession, claiming, as trustees under the will of Henry Ames, the power to give a perfect title. They executed a deed, with covenants of warranty, and the testimony is that they were ready to comply with their agreement, and to give possession within twenty-four hours. Defendant did not employ plaintiffs to ascertain in whom the legal title was vested, and to obtain from the real owners, whoever they might turn out to be, a perfect title. Such an employment they might perhaps have refused. He professed to know who were the persons having the right to convey. He stated to plaintiffs that he had a purchaser for the property at $700 a foot; that he did not believe the Scudders could be got to sell and deliver possession within ten days; that he was not on speaking terms with the Scudders; that if they would obtain from the Scudders an agreement in writing to convey on the terms named, they should have four-fifths of the commission on the sale, to be deducted from...