Duncan v. Hills
| Decision Date | 04 March 1911 |
| Citation | 135 S.W. 450,155 Mo.App. 702 |
| Parties | T. B. DUNCAN et al., Appellants, v. J. L. HILLS, Respondent |
| Court | Missouri Court of Appeals |
February 8, 1911, Argued and Submitted
Appeal from Audrain Circuit Court.--Hon. James D. Barnett, Judge.
Judgment affirmed.
P. H Cullen and F. R. Jesse for appellants.
(1) All the instructions given for defendant are erroneous because they exclude the theory that defendant promised to pay plaintiffs after the deal was consummated. Bell v Electric Co., 125 Mo.App. 660; Bolles v Railroad, 134 Mo.App. 704; Toncrey v. Metropolitan, 129 Mo.App. 600. (2) There was no evidence in the case tending to show that plaintiffs had ceased in their efforts to effect a sale and the defendant's instruction submitting that issue is not based on any evidence. State v. Edwards, 203 Mo. 528; Wise v. Railroad, 135 Mo.App. 246. (3) The instructions are in direct conflict. Plaintiffs' instruction authorizes a verdict for plaintiff even though the particular tract of land was not mentioned, while those for defendant direct a verdict for defendant unless the plaintiff had in mind and mentioned the specific tract of land sold by defendant; such conflict constitutes reversible error. Wallock v. Transit Co., 123 Mo.App. 160; Gessner v. Metropolitan, 132 Mo.App. 587. (4) The evidence in this case fell short of establishing any defense. Defendant admitted the employment, admitted that the plaintiffs procured the purchaser and introduced him to said defendant, and that the sale was made to the purchaser. Defendant did not employ the plaintiffs to sell any specific tract but employed them as his general agent to procure purchasers for any land, and on the undisputed facts plaintiffs were entitled to a verdict, and the court should have directed a verdict for plaintiffs. Sissel v. Railroad, 214 Mo. 527; Strauss v. Chewing Gum Co., 134 Mo.App. 110; Heckesler v. Cooper, 203 Mo. 293. (5) If an agent introduces the purchaser or discloses his name to the owner and because of such introduction or disclosure negotiations are begun and a sale of land is effected the agent is entitled to his commission even though the sale was made and negotiations concluded by the owner himself. Holland v. Vinson, 124 Mo.App. 417; Bass v. Jacobs, 63 Mo.App. 393; Tyler v. Parr, 52 Mo. 249; Timberman v. Craddock, 70 Mo. 638; Gelatt v. Ridge, 117 Mo. 553; Salle v. McMurry, 113 Mo.App. 253.
E. C. Anderson and Robertson & Robertson for respondent.
A real estate agent is not entitled to a commission on account of the sale of property placed in his hands for sale unless he is the procuring cause of the sale. Gamble v. Grether, 108 Mo.App. 341; Pollard v. Banks, 67 Mo.App. 187; Beauchamp v. Higgins, 20 Mo.App. 514; Crowley v. Summerville, 70 Mo.App. 376; Campbell v. Wanstone, 73 Mo.App. 74; Warren v. Cram, 71 Mo.App. 74; Tooker v. Duckworth, 107 Mo.App. 231; 19 Cyc. 250, 251; Wolff v. Rosenberg, 67 Mo.App. 403; Cunliff v. Hausmann, 97 Mo.App. 467.
Plaintiffs, appellants here, under the firm name of Duncan & Myers, brought their action against defendant to recover commissions at the rate of one dollar per acre for acting as agents for defendant in selling 640 acres of land in the State of Texas, it being alleged that defendant had agreed to pay them at that rate if they effected a sale of that land or were instrumental in effecting a sale thereof. They aver the sale of it by defendant to one George Hake, whereby they claim that defendant became indebted to them for $ 640, which they aver he has repeatedly promised to pay but has failed to do. Judgment is asked for that amount and costs.
The answer was a general denial.
At a trial before the court and a jury there was evidence tending to show that Hake had bought 640 acres of land in Texas from defendant; more accurately, Hake and defendant had exchanged lands, Mr. Hake owning a farm in Audrain county which he traded to defendant for this Texas land, there being some difference in value between the two tracts which appears to have been adjusted by a cash payment. It was further in evidence that plaintiffs, at the time of the sale from defendant to Mr. Hake, were engaged in handling deals in Texas lands. Their method of business was to take a number of prospective buyers down to Texas, introduce them to land agents and owners, show them the lands, and if a sale was made they were paid a commission on the sale. On August 18, 1908, defendant gave plaintiffs a writing, signed by him in which he agreed to pay to their order one dollar per acre commission "on any deals that they make for" him, payable when deeds are placed in escrow with any bank or trust company that may be agreed upon in the contract of sale. After the execution of this, plaintiffs, on one of their trips to Texas took Mr. Hake with them and introduced him to defendant as a customer for certain Texas lands which defendant then owned and had for sale. Hake, in company with one of the plaintiffs and with defendant or some one representing him, went over two tracts of land which defendant then owned. Hake declined to buy either of them. He testifies that he was introduced to defendant by Mr. Myers, one of the plaintiffs, and that defendant told him he had two certain sections of land for sale there which they went around and examined--that is Mr. Myers, Hake and defendant. After he had looked at them, Hake testifies, these two sections did not suit him in any particular. He told how these sections lay and that directly after he had left there, in company with Myers, Myers told him that he had "missed an awful good chance for a trade," whereupon Hake told him that he had "missed just such a good trade that he (Myers) was indebted" to him (Hake) for his trip down there; that he had misrepresented the place and that he did not propose to go any place else with him. Hake testified that he went down to Texas afterwards and again met Mr. Hills, the defendant, and that he and Mr. Hills finally traded for 640 acres but that this 640 acres was not any part of the land that he had been shown by Myers nor the land to which his attention had been called by plaintiffs. Hake testified in the most positive manner that plaintiffs had nothing whatever to do with the trade between himself and Mr. Hills concerning this 640 acres which they ultimately traded for with each other; that plaintiffs had never shown him this particular section. Defendant also testified that his contract with plaintiffs related to two other tracts and had no relation whatever to the tract subsequently sold to Hake. There was evidence on the part of plaintiffs that as a matter of business and to promote a sale to Hake, as Hake seemed to have taken a dislike to plaintiffs, that defendant was to hold out the idea to Hake that plaintiffs had nothing more to do with his transactions. This, however, was denied by defendant. Plaintiffs also introduced testimony tending to show that in an effort to settle the matter between them defendant had offered to pay them fifty cents an acre. Defendant denied this. Defendant also denied very positively that plaintiffs had had anything whatever to do with the sale of this particular 640 acres to Hake, on the sale of which the commission is here claimed. Briefly, the testimony was contradictory between plaintiffs and their witnesses on the one side and defendant and his witnesses on the other on every fact that is really material in the case, so that it was a case peculiarly resting on the determination of the jury, provided they were instructed...
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