Cosgrove v. Leonard Mercantile & Realty Co.

Citation175 Mo. 100,74 S.W. 986
CourtUnited States State Supreme Court of Missouri
Decision Date27 May 1903
PartiesCOSGROVE et al. v. LEONARD MERCANTILE & REALTY CO.

1. In an action for commissions for effecting a sale of defendant's real estate under a contract limited to expire in 90 days, one count of the petition was predicated on an alleged sale, consisting in a transfer of the land to a mining company, and the issuance of stock to defendant by the company. The evidence showed that nothing was accomplished during the life of the contract, but that afterwards the mining company was organized, and the land conveyed to it; that defendant's stockholders took practically all the stock of the mining company; that no money was paid to defendant for the land; that the object was to effect a sale of the land through the company. Held, that the evidence wholly failed to support the petition.

2. In an action for commissions for effecting a sale of land, the petition alleged that the land was placed in plaintiffs' hands, by a written contract, for sale at the price of $50,000, and that they were to receive 10 per cent. commission on the amount realized by the defendant, to be paid when the purchase price was received whether the land was sold directly or through the organization of a stock company, and the money value of the land realized by the sale of stock; that a mining company was organized, to which defendant conveyed the land, receiving practically all the stock of the company, the par value of which was $150,000; that defendant had received $100,000 from the sale of stock, on which amount plaintiffs were entitled to commissions. Held, that plaintiffs were not entitled to show that after selling 300 shares of stock at 33 1/3 cents on the dollar, and having a purchaser ready to buy all the stock at that figure, defendant raised the price to 40 cents; the action not being for damages for breach of contract, but proceeding on the theory of an actual sale.

Appeal from Circuit Court, Jasper County; Jos. D. Perkins, Judge.

Action by H. C. Cosgrove and others against the Leonard Mercantile & Realty Company. From a judgment for defendant, plaintiffs appeal. Affirmed.

Thomas & Hackney, for appellants. Galen & A. E. Spencer, for respondent.

MARSHALL, J.

This is an action to recover commissions for the alleged sale by the plaintiffs, as real estate brokers, of 80 acres of real estate in Jasper county belonging to the defendant. The petition is in three counts. The first count alleges that the defendant placed the land in the plaintiffs' hands for sale at the price of $50,000; that the plaintiffs procured a purchaser therefor at the price of $150,000, and the defendant sold the land to such purchaser (the Chitwood Hollow Mining Company) at that price; that it was agreed that the plaintiffs should receive 10 per cent. of the sum realized from the sale for their services, of which they have received only $1,300; and that there is a balance due them of $13,700, for which judgment is asked. The second count alleges that by a written contract the defendant placed the land in the plaintiffs' hands as its agents for sale at the price of $50,000, of which the plaintiffs were to receive 10 per cent. as their commission, and whereby it was agreed that the commission was to be paid "whether said land shall be sold and conveyed directly, or whether it should be sold by and through the organization of a stock company, and the money value of said land should be realized by the sale of stock issued by such company"; that the plaintiffs performed all the conditions of the contract on their part, and visited Chicago, and induced Dexter and Johnson to form a stock company, known as the Chitwood Hollow Mining Company, and the defendant conveyed the land to said company for a recited consideration of $150,000, and shares of stock of said company of the par value of $150,000 were issued, all of which, except three shares, were issued to and held by the defendant; that through the agency and efforts of the plaintiffs the defendant has received $100,000 from the sale of said stock; that the plaintiffs have received $1,300 on account of their commissions, and there is a balance due them of $8,700, for which judgment is asked. The third count of the petition alleges that the land was placed in their hands, by a written contract, for sale at the price of $50,000, and that they were to receive 10 per cent. commission on the amount realized by the defendant, to be paid when the purchase price was received, whether the land was sold directly, or through the organization of a stock company, and the money value of the land realized by the sale of stock; that the plaintiffs advertised the land for sale, and its great advantages as mineral property, and visited Chicago, at great expense, to induce persons to become interested in the land, and did induce certain men of influence in Chicago to form a stock company, known as the Chitwood Hollow Mining Company, and the defendant conveyed the land to said company for a consideration of $150,000, and that all of the $150,000 of stock of said company, except three shares, were issued to the defendant; that after the organization of the company, at the request of the defendant, the plaintiffs continued to advertise the land as rich in lead and zinc ore, and induced their relatives and acquaintances to take many lots on said land to prospect and mine the same, and to place pumps and machinery thereon, thereby increased the value thereof, and facilitated and procured the sale of the stock of said company held by the defendant at large profits and for large sums of money; that the plaintiffs' services were reasonably worth 10 per cent. of the amount realized by the defendant from the sale of such stock, and that the defendant agreed to pay them that amount therefor; that during the years 1897, 1898, and 1899 the defendant, through the efforts of the plaintiffs, sold all the shares of the stock of said mining company, and received therefor $100,000; that the plaintiffs have received $1,300 on account of their commissions; and that there is a balance due them of $8,700, for which judgment is asked. The answer is, first, a general denial, except as modified by the further allegations of the answer; and, second, a special defense, to wit, that on December 22, 1896, the defendant entered into a written contract with the plaintiffs, which is set out in full, whereby it placed the land in the plaintiffs' hands, as its agents, for sale at the price of $50,000, the defendant to furnish a complete abstract of title, make deeds to such persons as the plaintiffs directed, upon payment of the money stated, but to have a right to lease the land and collect royalties until the land was sold. The contract then provided as follows: "That said parties of the second part shall receive as compensation for their services in selling said land a commission of ten per cent. on the amount realized for same by party of the first part, said commission to be paid as the purchase price may be paid to party of the first part, and said commission of ten per cent. shall be due and payable to said Cosgroves whether said land be sold and conveyed directly to purchaser or purchasers, or whether it may be sold by and through the organization of a stock company, and the money value of said land realized by said party of the first part by the sale of stock issued...

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