Cole v. Crump

• Decision Date: 06 May 1913
• Citation: 174 Mo. App. 215,156 S.W. 769
• Parties: COLE v. CRUMP et al.
• Court: Missouri Court of Appeals

156 S.W. 769

174 Mo. App. 215

COLE v. CRUMP et al.

St. Louis Court of Appeals. Missouri.

May 6, 1913.

1. BROKERS (§ 50) — COMMISSIONS — WHEN EARNED.

A contract with a broker stipulated that the owner would pay him a commission on the price of the land optioned to a third person on condition that a sale was made to him. The contract and the option were executed at the same time and delivered to the broker. The option expired, and the owner thereafter gave to the third person another option, and after the time fixed therein the owner sold the property to him at an increased price. Held, that since the contract and original option, though construed together, as they must be, did not require the payment of commissions except on a sale under the option and within the time fixed therein and for the price specified, the broker, being the procuring cause of the sale finally made, could recover commissions at least on the price fixed in the original option.

2. BROKERS (§ 50) — COMMISSIONS — WHEN EARNED.

Where a sale is actually made by the owner closing the deal with the customer of the broker, the broker need not, to recover, show that the sale was completed within the time fixed in the contract of employment or an option on the property, provided the broker initiated the transaction of purchase within the prescribed time, and hence was the procuring cause, but recovery depends on the fact that the transaction initiated by the broker was continued by the subsequent dealings between the owner and the customer or some one representing him.

3. BROKERS (§ 57) — COMMISSIONS — WHEN EARNED.

A broker was employed to sell real estate to a third person, who at the same time obtained an option to purchase. The owner, after the expiration of the option, gave to the third person another option, and after the expiration of the time therein sold the property to a corporation organized by the third person shortly before the sale. The third person owned substantially all of the stock of the corporation. Held, that the broker, being the procuring cause of the sale, could recover his commission on the jury finding that the sale made to the corporation was tantamount to a sale to the third person in person.

4. BROKERS (§ 88) — INSTRUCTIONS — MISLEADING INSTRUCTIONS.

Where, in an action by a broker for commissions, the evidence showed that the broker was employed to sell real estate to a third person having an option to purchase, that after the expiration of the option the owner gave a second option, and after the expiration of that option sold the property to a corporation organized by the third person, and the facts justified a finding that the sale to the corporation was equivalent to a sale to the third person, an instruction that, before the broker could recover, the jury must find that the property was sold to the corporation "in pursuance of and under the renewal option," otherwise the verdict must be for the owner, was misleading as leading the jury to believe that, before the broker could recover, the second option must have continued to the time of the conveyance and that the right of recovery depended thereon.

Appeal from Circuit Court, Washington County; E. M. Dearing, Judge.

Action by Charles E. Cole against John H. Crump and another. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

Edw. T. Eversole, of Potosi, for appellant. S. G. Nipper, of Potosi, and H. B. Irwin, of De Soto, for respondents.

NORTONI, J.

This is a suit by a real estate agent for his commissions. The finding and judgment were for defendants, and plaintiff prosecutes the appeal.

Defendants owned 120 acres of land which they desired to sell, and plaintiff was engaged in blocking parcels of mineral land together and selling it for mining purposes to those engaged in such business. It appears that defendants employed plaintiff by a written contract to sell their lands to one George J. Cole, who was engaged in the mining business in St. Francois county. By the terms of the contract of employment defendants agreed to pay plaintiff 5 per cent. on the purchase price, which according to an option executed concurrently therewith, was to be $60 per acre. The written contract by which plaintiff was employed is as follows: "We, the undersigned, hereby agree to pay Charles Cole the sum of five per cent. of the purchase price of our land this day optioned to George J. Cole, on condition that the sale is made to the said Cole. [Signed] John Crump, Martha Crump." On the same day and concurrently with the execution of this writing defendants executed an option in writing on their land to George J. Cole, and delivered it to plaintiff along with his contract of employment, whereby they agreed in consideration of $1 to convey the land therein described to George J. Cole in consideration of $60 per acre at any time to suit his convenience within 65 days from that date. Plaintiff interested George J. Cole, the proposed purchaser, in the land, and the evidence tends to prove that he persuaded him to purchase the same, but not immediately. Before the same was consummated, the option expired, and defendants executed a new one to George J. Cole, whereby they agreed to convey the lands to him any time within one year after its date for the price and on the terms thereinbefore mentioned. The time limit prescribed in the second option was permitted to expire without the sale being finally concluded, but four months after its expiration George J. Cole purchased the land from defendants at the price of $65 per acre. The evidence tends to prove that the negotiations were pending from the time plaintiff interested Cole under the first option and until the conveyance was finally executed by defendants to the Irondale Lead Company, which corporation, it appears, was organized by George J. Cole to take the title to such land.

While the evidence is abundant, and indeed not denied, that plaintiff interested George J. Cole in the land, who agreed to take it, it does not appear that he personally negotiated the subsequent; that is, the extension of the original option thereon between defendants and George J. Cole, or personally participated in closing the deal when the conveyance of...