Duncan v. Turner

• Decision Date: 01 March 1913
• Parties: WAYNE A. DUNCAN, Appellant, v. SARA B. TURNER, Respondent
• Court: Missouri Court of Appeals

154 S.W. 816

171 Mo.App. 661

WAYNE A. DUNCAN, Appellant, v. SARA B. TURNER, Respondent

Court of Appeals of Missouri, St. Louis

March 1, 1913

Appeal from St. Louis City Circuit Court.--Hon. Charles Claflin Allen, Judge.

REVERSED AND REMANDED.

Reversed and remanded.

John Cashman for appellant.

(1) The defendant's answer admits that defendant executed the contract sued on and it was fatal error to give the instruction in the nature of a demurrer to the evidence. (a) The rule has been long established, in Missouri, that if a real estate agent procures a purchaser, ready, willing and financially able to make the purchase absolutely, on the terms fixed by the principal, or to respond in damages, and the principal accepts such purchaser, and enters into a contract with him respecting the sale of the property, the agent is prima facie entitled to his commissions. Sallee v. McMurry, 113 Mo.App. 253; Lemon v. Lloyd, 46 Mo.App. 452; Love v. Stone, 31 Mo.App. 501; Chipley v. Leathe, 60 Mo.App. 15; Childs v Crithefield, 66 Mo.App. 422; Gellatt v. Ridge, 117 Mo. 553; Nichols v. Whitacre, 112 Mo.App. 692; Morgan v. Keller, 194 Mo. 663; Kilpatrick v Wiley, 197 Mo. 123; Goldsberry v. Eades, 161 Mo.App. 8. (b) Even though the contract in this case should be construed to grant an authority to sell only, yet if an exchange and not a sale be made, still the plaintiff is entitled to his commissions, to the same extent as he would be if a sale had been made. Gether v. McCormick, 79 Mo.App. 332; Nichols v. Whitacre, 112 Mo.App. 692; Gellatt v. Ridge, 117 Mo. 553.

W. L Coley for respondent.

NORTONI, J. Reynolds, P. J., concurs. Allen, J., having been of counsel, is not sitting.

OPINION

NORTONI, J.

--This is a suit by a real estate broker for his commissions. Besides denying the right of recovery, defendant, by her answer, interposed a counterclaim. At the conclusion of the evidence, the court peremptorily directed a verdict for defendant on plaintiff's cause of action and submitted the issue arising on defendant's counterclaim to the jury. The finding and judgment were accordingly against the plaintiff on his cause of action and in favor of the defendant on her counterclaim in the amount of $ 422.35. From this judgment plaintiff prosecutes the appeal.

We will first review the matter pertaining to plaintiff's cause of action and then as to defendant's counterclaim. It appears plaintiff is a real estate broker in St. Louis and defendant owned a farm of 328 acres in Boone county which she desired to dispose of. On March 5, 1909 defendant authorized plaintiff, in writing, to sell her farm at an agreed valuation of forty-five dollars per acre and agreed to pay him therefor a commission of five per cent on the purchase price for conducting the sale. The written contract by which defendant employed plaintiff to dispose of the farm seems to contemplate that a cash sale should be made at forty-five dollars per acre, but this writing consists in part of numerous questions propounded to defendant and answers given by her which indicate as well that she would exchange the farm for other property. Two of those questions and answers are as follows: "Will you exchange for St. Louis income property? A. I might . . . Will you exchange the farm for any other property? A. Yes." However, we do not regard this as very material, for it appears that defendant actually entered into a written contract with a customer by the name of Funderburk, procured by plaintiff, for the exchange of her farm for four dwelling houses in St. Louis and a sum of money. This being true, plaintiff's right of recovery as for commissions must, of course, depend upon the validity and sufficiency of the contract between Funderburk and defendant for the exchange of properties to the end of effectuating a sale, for it devolves upon him to show full performance on his part in accordance with his original undertaking and such modifications as the defendant may have authorized in the meantime. And the strict letter of his original agency contract is no longer material.

The evidence tends to prove that plaintiff interested Homer Funderburk in defendant's farm and interested defendant as well in four houses, numbered 5052, 5054, 5058, and 5060 Garfield avenue, St. Louis, which Funderburk owned at the time. Funderburk sent his brother-in-law, Wahl, to investigate defendant's farm, and defendant, in company with plaintiff, looked over one of Funderburk's houses and accepted assurances from plaintiff touching the others until she became satisfied concerning their exchange value. After some preliminary negotiations between the parties, plaintiff drew up a contract in writing, of date May 5, 1909, which was executed by both defendant and Funderburk and stipulated for an exchange of the property owned by them on or before the 12th day of June thereafter. According to this contract, defendant agreed to convey her Boone county farm to Funderburk with good and sufficient title and clear of all incumbrances and Funderburk agreed to convey to her the four houses, numbered 5052, 5054, 5058, and 5060, Garfield avenue, St. Louis, each house subject, however, to a deed of trust of $ 3,500 at six per cent, etc. Furthermore Funderburk agreed to pay defendant at the time the exchange of properties was consummated, in cash, the sum of $ 4760. This written contract provides, too, that the titles to the properties should be good, but if upon examination either title should prove defective, a reasonable time is to be allowed to perfect the same and the contract to remain in force and effect in the interim. It appears that some slight defects were discovered in defendant's title when an abstract to the farm was furnished and requirements were preferred touching the matter of curing the same. When the title to Funderburk's houses was examined and a certificate thereof furnished plaintiff, it appeared there was a second deed of trust for $ 2000 thereon and a judgment lien for something near $ 500 against the property and besides some unpaid taxes. Furthermore, the certificate of title revealed that the title stood in one Mrs. Mathias and not in Funderburk at all, but this matter is unimportant, for Funderburk testified positively that he owned the property and it is to be inferred that his deed was not yet recorded. Besides, either side, as is usual, was entitled to a reasonable time to cure defects in title.

It is shown and not contradicted that Funderburk was a man of considerable means and ready, able and willing to consummate the trade. The evidence reveals that he deposited a certified check for $ 7500 with plaintiff to remove the second mortgage, judgment, tax lien and other incumbrances on the houses not mentioned and provided for in the contract and to pay the $ 4760 cash agreed upon with defendant, but, notwithstanding this, defendant refused to carry out her part of the contract, for the reason that plaintiff had practiced deceit upon her. If plaintiff practiced deceit upon defendant and induced her, through misrepresentations, to enter into the contract with Funderburk, no one can doubt that such matters may be shown in defense of this suit by the agent for his commissions, claimed on the theory that he has performed his contract of agency through consummating a contract between Funderburk--one ready, able and willing to buy--and defendant, for a sale or exchange of her farm. But, though such be true, the question of plaintiff's right of recovery as for commissions was one for the jury, and the court erred in peremptorily directing a verdict against him thereon.

In those cases where the suit is by the real estate broker against his principal for commissions, and it appears the actual sale of the property has been defeated because of the owner's refusal to complete the trade, the law regards and treats as full performance of the agent's contract the production and introduction as such to the seller of a proposed purchaser ready, able and willing to buy the property in accordance with the terms imposed by the owner. In the sense of the law, the broker has performed his contract and effected a sale when he has produced and introduced to the seller a purchaser ready, willing and able to buy, who is prevented from so doing alone by the refusal of the seller to carry out the contract. [See Goodson v Embleton, 106 Mo.App. 77, 80 S.W. 22; Sallee v. McMurry, 113 Mo.App. 253, 88 S.W. 157.] Here it does not appear that the plaintiff produced and introduced Funderburk to the defendant in person, but, by construction of law, the equivalent is accomplished by the written contract which he negotiated between the parties. Where the broker, through his efforts, procures a purchaser for the property of his principal and negotiates a valid, binding contract for his principal, with a responsible person, for the sale or exchange of properties between them, which contract may be enforced by the owner of the property against the purchaser so produced by the broker, the procurement of such enforcible contract alone is regarded as a full performance on the part of the broker, so as to entitle him to his commission where the owner--that is, his principal--refuses, without just cause, to complete the transaction. [Hayden v. Grillo, 35 Mo.App. 647; Goldsberry v. Eades, 161 Mo.App. 8, 142 S.W. 1080.] According to the uncontradicted evidence, plaintiff procured a purchaser for defendant's property and drafted a valid, enforcible written contract between them which was executed by Funderburk on the one part and defendant on the other, stipulating for an exchange of property as above set forth. It appears Funderburk was responsible, and, according to the evidence, might have been required to respond in equity as for a...