Dillard v. Field

• Decision Date: 03 February 1913
• Citation: 153 S.W. 532
• Parties: DILLARD et al. v. FIELD et al.
• Court: Missouri Court of Appeals

153 S.W. 532

DILLARD et al. v. FIELD et al.

Kansas City Court of Appeals. Missouri.

February 3, 1913.

1. BROKERS (§ 53) — COMMISSIONS — WHEN EARNED.

A broker employed to procure a purchaser of a farm or of specific tracts thereof induced a prospective purchaser to examine 80 acres, but no sale was made because of objections to 40 acres. Subsequently the owner, without the broker's aid sold the 40 acres, and a relative of the prospective purchaser purchased the remaining 40 acres and an additional 30 acres not forming a part of any of the specified tracts. The broker had nothing to do with the sale. Held, that the broker was not entitled to commissions because he was not the procuring cause of the sale and at most only one of a chain of causes.

2. BROKERS (§ 86) — COMMISSIONS — WHEN EARNED.

Where an introduction or advertisement or disclosure of purchaser is relied on to entitle a broker to a commission, the evidence must show that it was the foundation of the negotiations resulting in a sale, though conducted and concluded by the owner.

Appeal from Circuit Court, Pettis County; H. B. Shain, Judge.

Action by Joseph G. Dillard and another against Lillie B. Field and another. From a judgment for plaintiffs, defendants appeal. Reversed.

G. W. Barnett, of Sedalia, for appellants. W. D. O'Bannon and W. D. Steele, both of Sedalia, for respondents.

TRIMBLE, J.

Respondents, real estate brokers, doing business as Dillard Brothers Realty Company, sued appellants, who are husband and wife, for commission on a sale of real estate. Appellants filed a demurrer to the evidence which was overruled and judgment rendered against them. Their contention here is that, under the law and the undisputed facts, respondents had no case.

In the summer of 1910, appellants, having a farm of 280 acres, placed it in respondents' hands to sell. There was no exclusive agency, as it was also listed with several other agents. Shortly thereafter appellants sold off 40 acres, leaving the remaining 240 with respondents and the other agents as before. The house and other improvements were located on the south 40 of the west 80, and immediately adjoining this 80 on the east was a 60. The county road ran east and west along the south ends of this 60 and 80 and then turned north along the west side of the 80. These facts are stated to show that, when appellant authorized respondents to sell either parts or the whole of said farm they of necessity authorized a sale of only particular parts thereof but not any portion which might be carved out of the 240. They were willing to sell either the north 40 of the west 80, or they would sell the entire west 80, or they would sell this west 80 and the west 30 acres of the adjoining 60, making 110 in all, or they would sell the entire farm. This was no arbitrary whim or caprice with them. They could not do otherwise. The north 40 was cut up by ravines and was thinner and poorer land. If they sold the south 40, or the south 40 and any 30 of the adjoining 60, they would practically isolate the north 40 and greatly injure its subsequent sale, besides deprive themselves of a good building site for the rest of the farm, which site was on the south end of the 60 and fronted on the east and west road.

Plaintiffs' petition says they were employed to procure a purchaser for, or make a sale of, defendants' farm, or any part thereof. The evidence, however, is that, in selling only a part of said farm, respondents were authorized and employed to sell only those parts indicated above. In other words, plaintiffs were employed to procure a purchaser for, or to make a sale of, either the whole of said farm, or the above-mentioned parts only.

About the middle of July, 1910, one of respondents found a Mr. Emery Rutt and took him out to appellants' farm, introduced him to Mrs. Field, and tried to sell him the west 80. The agent claims that he tried to sell him the whole farm and that Rutt saw more than the aforesaid 80. Rutt, however, says he went out there wanting only 80 acres, that he was shown only the west 80, and did not consider any more than 80, or any other part of said farm. Mrs. Field says that when the agent introduced Rutt to her he said, "I have brought Mr. Rutt out for the purpose of buying this 80 acres." Whatever may be the truth of this, the undisputed evidence is that the negotiations had between Rutt and Mrs. Field and between Rutt and the agent were solely over the west 80. Respondents admit that the price discussed was solely on the west 80 or the whole farm and not upon any 70 acres. Rutt objected to the poor and broken north 40 and to the price of $165 per acre or $13,200 for the 80. He and the agent left, and on the way home Rutt told the agent that if he could get the 80 for $10,000 he might consider it. But these terms the agent was unable to procure. Rutt says the agent never said anything to him about it afterwards, but the latter claims that he mentioned the matter to him at...