Coffman v. Dyas Realty Co.

• Decision Date: 16 July 1913
• Citation: 159 S.W. 842,176 Mo. App. 692
• Parties: COFFMAN v. DYAS REALTY CO.
• Court: Missouri Court of Appeals

159 S.W. 842

176 Mo. App. 692

COFFMAN v. DYAS REALTY CO.

St. Louis Court of Appeals. Missouri.

July 16, 1913.

Rehearing Denied October 7, 1913.

1. BROKERS (§ 88)—AGREEMENT TO DIVIDE COMMISSIONS—PROCURING CAUSE OF SALE— EVIDENCE.

Whether plaintiff, a real estate agent, interested N. in a farm, and N.'s subsequent purchase of it through defendant, a real estate agent having it for sale as agent for the owner, was by reason of that fact, so that plaintiff was the procuring cause of the sale, and so entitled to recover under defendant's agreement with him, that he should have half of the commissions if a purchaser was procured through his efforts, is a question for the jury; plaintiff having first called N.'s attention to the farm, described it, informed him of its location in a general way, and sought to induce him to buy it, and he having within two weeks thereafter come to defendant to buy it, though he testified that he was first really interested in and induced to purchase the land through defendant's advertisement which he saw after his interview with plaintiff, his credibility and the weight and value to be given to his testimony being for the jury, though such testimony, pertaining to N.'s state of mind, was not and could not be directly disputed by plaintiff.

2. BROKERS (§ 80)—RIGHT TO COMMISSIONS— TIME OF INTRODUCING CUSTOMER.

It is immaterial, as regards the right of plaintiff, a real estate agent, to recover under the agreement of defendant, another real estate agent, that he should have half of defendant's commissions on any sale, where the purchaser was procured through his efforts, that the formal introduction by plaintiff to defendant of one who afterwards purchased a farm through defendant was before defendant became agent for sale of it, and while sale of another form was being considered, plaintiff's efforts inducing the purchase being subsequent to defendant becoming agent for the sale.

3. BROKERS (§ 52)—RIGHT TO COMMISSIONS— CONSUMMATION OF SALE.

There was a consummation of a sale to M., plaintiff's customer, of land of S. which defendant, as real estate agent, had for sale, entitling plaintiff, another real estate agent, to recover on defendant's agreement to give him half the commissions if a purchaser was procured through his efforts, where M. took an option on the land, and while the option was in force defendant by authority of M. sold it for M. to N., and deed was made by S. to N., and settlement made by defendant with S. on the basis of a sale for him at the price named in the option, and with M. on the basis of a purchase by him at such price and a resale for him at price at which N. bought.

4. BROKERS (§ 54)—RIGHT TO COMMISSIONS— PURCHASER READY, ABLE, AND WILLING.

The question of producing a purchaser ready, able, and willing to buy, as regards a real estate agent's right to commissions, is not involved, but is concluded, where the sale is consummated, though through a resale on such purchaser's account, and a deed from the original vendor to the second purchaser, and a distribution of the price paid by the latter on the basis of such two sales.

5. BROKERS (§ 85)—ACTION FOR COMMISSIONS —EVIDENCE OF SALE.

To the end of showing that defendant, a real estate agent, in reselling to N. land during the life of an option thereon given to M. by defendant, while holding as such agent the land for sale for S., occupied the position of agent of M., and thereby recognized M. as owner in that transaction, so as to entitle plaintiff, another real estate agent, under his agreement with defendant, to half of the commissions on a consummated sale to M., though deed was made by S. directly to N., a letter from defendant to N., from which it could be inferred that defendant recognized that M. had become the owner for purpose of a resale, is admissible.

6. TRIAL (§ 260) — INSTRUCTIONS — REPETITION.

The instructions given for defendant presenting all the phases of the defense, refusal of others requested by it was not error.

7. BROKERS (§ 53)—AGREEMENT TO DIVIDE COMMISSIONS—ASSISTING IN SALE.

Where defendant, a real estate agent having farms for sale, told plaintiff to procure and send a customer to it, agreeing to pay him half the commissions if a purchaser was procured through his efforts, it was enough to entitle him to such division that he merely assisted defendant to make a sale, provided he was the procuring cause thereof.

Appeal from St. Louis Circuit Court; J. Hugo Muench, Judge.

Action by J. W. Coffman against the Dyas Realty Company. Judgment for plaintiff, and defendant appeals. Affirmed.

R. P. & C. B. Williams, of St. Louis, for appellant. Abbott, Edwards & Wilson, of St. Louis, for respondent.

NORTONI, J.

This is a suit by a real estate agent for his commissions accrued on account of two separate sales of property. Plaintiff recovered, and defendant prosecutes the appeal.

Both plaintiff and defendant are engaged in the real estate business, that is, as agents in making sales of real property for other persons. Plaintiff maintains a real estate office in Springfield, Ill., and induces prospective purchasers to come into Missouri to buy farms. Defendant is an incorporated real estate company in St. Louis engaged in selling farms as agent for the owner.

The petition is in two counts. The first relates to the sale of property known as the McMahon farm in St. Charles county, Mo., and the second to the sale of the Schneider farm in the same county. We will first review the arguments pertaining to the case stated in the first count, and thereafter consider the questions arising on the second count.

Touching the sale of the McMahon farm, declared upon in the first count, it is conceded that defendant employed plaintiff to solicit buyers and "talk up" the farm. For his services in this behalf defendant agreed to divide commissions with plaintiff. Defendant's commissions on the sale were to be 5 per cent. of the purchase price in event a sale was made. By defendant's agreement with plaintiff, he was to have 2½ per cent. of this sum if a purchaser was procured through plaintiff's efforts. Plaintiff employed one R. E. McClelland, a real estate agent of Springfield, Ill., to co-operate with him in selling the property, and it appears defendant was duly informed of this fact. The evidence for plaintiff tends to prove that his agent, McClelland, called upon one F. D. Nunes, and solicited him to buy the McMahon farm. Nunes had recently sold his land near Springfield, Ill., and was in the market to buy a farm. McClelland described the McMahon farm to Nunes, suggested the neighborhood of its location, and told Nunes that he would buy it if he saw it. He sought to induce Nunes to accompany him to look at the land immediately; but Nunes declined to do so. It is conceded that Nunes had never heard of the McMahon farm before McClelland called his attention to it and urged him to buy it. Two weeks later Nunes visited St. Louis, called at defendant's office, and purchased the McMahon farm directly through it, for which he paid $30,000. It is true Nunes says in his testimony that, though McClelland talked to him about this farm, and described it to him in a general way, he was not induced to buy it through the efforts of McClelland, who represented plaintiff in that behalf. Nunes says that subsequent to his conversation with McClelland he read defendant's advertisement describing the farm in a Springfield paper, and was thus induced to come to St. Louis and make the purchase.

It is argued that the court should have directed a verdict for defendant on this count for the reason it does not sufficiently appear that plaintiff was the procuring cause of the sale to Nunes; but we are not so persuaded. It is conceded throughout the case that McClelland, who first called Nunes' attention to the farm, which he purchased two weeks later, was the agent of plaintiff, and represented him in the interview with Nunes....