Cosgrove v. Leonard Mercantile & Realty Company
| Decision Date | 27 May 1903 |
| Parties | COSGROVE et al., Appellants, v. LEONARD MERCANTILE & REALTY COMPANY |
| Court | Missouri Supreme Court |
Appeal from Jasper Circuit Court. -- Hon. Jos. D. Perkins, Judge.
Affirmed.
Thomas & Hackney for appellants.
(1) Plaintiffs' evidence was ample to submit the case to the jury. It showed that plaintiffs promoted the enterprise of organizing the Chitwood company to whom defendant conveyed the land for a consideration of $ 150,000, acknowledged by defendant to have been received. None of the stock of the Chitwood company was put in the control of the defendant. It had the obligation of the Chitwood company, a solvent purchaser for $ 150,000, which if not paid could have been collected. The defendant can not impeach this transaction and avoid plaintiffs' commission by saying that plaintiffs were required to wait till the stock of the Chitwood company was sold by the shareholders of that company at such prices as they saw fit to make and to increase from time to time without plaintiffs' consent. (2) As to plaintiffs and defendant, the Chitwood company was the purchaser of the property, and even if plaintiffs were required to wait for payment of their commission until the stock was sold, yet plaintiffs were entitled to have all stock sold at $ 33 1-3 per share which would produce $ 50,000, the money value of defendant's land fixed by the contract; and if defendant or the Leonards raised the price of the stock and refused to sell at $ 33 1-3 per share, such refusal was tantamount to an election by the holder of the stock to keep it at that price and should be treated as an actual cash sale for $ 33 1-3 per share, so far as plaintiffs were concerned. This was a full and complete performance by plaintiffs of their part of the contract, and entitled plaintiffs to receive at least $ 5,000 commission. (3) The ruling of the trial court that the question of plaintiffs having procured a purchaser ready and willing to buy the stock at $ 33 1-3 per share was not raised by the pleadings, was erroneous. The defendant's answer averred that the "plaintiffs did not procure a purchaser ready, able and willing to take the stock." If plaintiffs' petition lacked in averments on that point the answer supplied the petition by express aider. Ricketts v. Hart, 150 Mo. 64. (4) As the Chitwood company purchased of defendant the land, and the stock was taken by others than the defendant, the most that could be required of plaintiffs was to wait for their commission until the defendant had realized from the Chitwood company $ 50,000, the agreed price of the land. The defendant, in fact received $ 65,366.66 from the Chitwood company's stock sales. The plaintiffs unquestionably were entitled to show that fact, and on this showing were entitled to ten per cent commission.
Galen & A. E. Spencer for respondent.
(1) The first count is based on the theory that the conveyance to the Chitwood company was a full performance of the commission contract. Under the evidence there is no basis for such contention. (2) The instruction was properly given under the third count. The written contract was pleaded and introduced in evidence. This contract provides that plaintiffs are by their efforts, within a fixed time, to accomplish a certain result, viz., the receipt by defendant of certain money; if this be done, then the time and manner of payment is settled. Even if this count be construed as quantum meruit, the contract is binding on plaintiffs and their right to recover is limited by its terms. Stout v. Co., 52 Mo. 342; Barnett v. Swearingen, 77 Mo.App. 71; Crapson v. Wallace Bros., 71 Mo.App. 682.
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 ten 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 plaintiff's hands as its agents for sale at the price of $ 50,000, of which the plaintiffs were to receive ten 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 one hundred and fifty thousand dollars, and shares of stock of said company of the par value of one hundred and fifty thousand dollars 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 one hundred thousand dollars 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 ten 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 stocks; 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 one hundred and fifty thousand dollars 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 ten 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 one hundred thousand dollars; that the plaintiffs have received thirteen hundred dollars 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:
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