Dodge v. Childers

• Decision Date: 09 December 1912
• Parties: DODGE v. CHILDERS.
• Court: Missouri Court of Appeals

151 S.W. 749

167 Mo. A. 448

DODGE v. CHILDERS.

Kansas City Court of Appeals. Missouri.

December 9, 1912.

1. PARTNERSHIP (§ 5) — EXISTENCE OF RELATION.

Where defendant, who had employed his brother, a lawyer, as agent, to procure a purchaser of his farm, employed plaintiff to advertise the property for a commission if a purchaser was procured, but the agency of the brother was not revoked, and it was agreed that plaintiff should turn over to him the answers received to the advertisements, and that the brother should thereafter conduct the negotiations with prospective purchasers, for which services he should receive a commission from defendant equal to that of plaintiff in the event their combined efforts produced a purchaser, plaintiff and defendant's brother were not partners in the transaction, but plaintiff was merely employed to render individual service, and he could sue in his own name for the agreed compensation.

2. BROKERS (§ 7) — CONTRACTS — JOINT CONTRACTS.

The testimony of defendant in an action to recover a commission for services performed by plaintiff in the sale of a farm of defendant that the obligation of defendant who had previously employed his brother to procure a purchaser was not to pay the commission to the two jointly, but to his brother alone, with the understanding that his brother would employ plaintiff, and divide the commission with him if he procured a purchaser, did not prove a joint obligation, though it disproved plaintiff's cause of action, and did not show that plaintiff and defendant's brother were joint contractors, but plaintiff could sue alone for the services rendered.

3. BROKERS (§ 9) — CONTRACT OF EMPLOYMENT — REVOCATION OF AGENCY.

Where a contract employing a broker to procure a purchaser of real estate contained no provision limiting the duration of the agency, the law implied an agreement for the performance of the service within a reasonable time, after the lapse of which either party could terminate the contract on notice.

4. BROKERS (§ 88) — EMPLOYMENT — LIABILITY FOR COMMISSION — EVIDENCE — INSTRUCTIONS.

Where, in an action by a broker for commissions for procuring a purchaser of real estate, the evidence showed that the contract of employment did not limit the duration of the agency, and it showed that prior to a sale he had revoked the agency, and plaintiff testified that he received no notice, and showed that the purchaser at first abandoning the idea of purchasing the property subsequently decided to purchase and actually purchased the property, instructions that defendant could revoke the agency if he acted in good faith, and not in furtherance of a purpose to deprive plaintiff of a fairly earned commission, fairly submitted the issue of revocation.

5. BROKERS (§ 44) — EMPLOYMENT — RIGHT TO COMMISSIONS.

Where an owner employing a broker to procure a purchaser mailed his notice of revocation after receiving a proposal from a purchaser procured by the broker, the act of the owner was in bad faith, and did not deprive the broker of his commission.

6. BROKERS (§ 44) — EMPLOYMENT — RIGHT TO COMMISSIONS.

Where an owner employing a broker to procure a purchaser of real estate mailed a notice of revocation before receiving the proposal of a purchaser procured by the broker, or knowledge of the proposal, he was not relieved of the imputation of bad faith, but his subsequent acceptance of the purchaser's offer entitled the broker to receive his commission on the theory that he had performed the contract while unrevoked.

Appeal from Circuit Court, Sullivan County; Fred Lamb, Judge.

Action by Thomas A. Dodge against Stephen L. Childers. From a judgment granting a new trial after verdict for defendant, he appeals. Affirmed.

John W. Bingham, Earl F. Nelson, and W. H. Childers, all of Milan, for appellant. D. M. Wilson and John W. Clapp, both of Milan, for respondent.

JOHNSON, J.

Plaintiff sued to recover a commission for services performed in the sale of a farm owned by defendant in Sullivan county. The petition states that in the month of October, 1910, defendant "placed the said farm in plaintiff's hands to sell or exchange for him at and for the sum of not less than $47.50 per acre, and agreed to pay plaintiff the sum of 50 cents per acre for selling or trading the same at that price per acre, and agreed, in addition, to pay him the one-half of all that said land brought over and above $47.50 per acre; that the plaintiff found a purchaser in one W. O. Swearengen of said county, and that said farm of 700 acres was sold to said Swearengen for $48 an acre, and that a deed was made by said defendant and his wife on the 6th day of March, 1911, for said 700 acres, and that the said Swearengen is now the owner and in the possession thereof; that thereby the defendant became indebted to plaintiff in the sum of $525, and that the said sum was and is justly due from defendant to plaintiff; but that, although the plaintiff has demanded of defendant the sum of $525, the defendant has refused, and still refuses, to pay plaintiff the said sum of $525 or any part thereof." The principal defenses interposed by the answer are, first, that plaintiff is not entitled to maintain the action as an individual plaintiff, for the reason that he was not employed in that capacity but as a member of a partnership; and, second, that defendant revoked the agency of the partnership before a purchaser ready, willing, and able to purchase the farm on the terms proposed had been procured. A reply in the nature of a general traverse of these affirmative defenses was filed by plaintiff, and the issues raised by the pleadings were tried and submitted to a jury. A verdict for defendant was returned, and in due time plaintiff filed a motion for a new trial which alleged errors in the rulings on questions of evidence and in the instructions given the jury, and further alleged that the verdict was against the weight of the evidence. The court sustained the motion and granted a new trial, but failed to state the ground of the ruling in the order. Defendant appealed.

Plaintiff is the owner and publisher of a newspaper in Milan, the county seat of Sullivan county. Defendant owned a farm of 700 acres 6 or 7 miles from Milan. Some time before the events in controversy, he had removed to Oklahoma, and resided on a farm in the vicinity of Helena, in Alfalfa county. He wished to sell his farm in Sullivan county, and visited Milan in October, 1910, partly for the purpose of effecting a sale. He had employed his brother, W. H. Childers, a lawyer in Milan, as his agent, but no purchaser had been found. During the visit to Milan he had an interview with plaintiff, in which, according to the testimony of the latter, he agreed to employ plaintiff to advertise the farm, and agreed that if a purchaser should be procured by such means...