English v. Page

• Decision Date: 09 January 1922
• Docket Number: No. 14190.,14190.
• Parties: ENGLISH v. PAGE.
• Court: Missouri Court of Appeals

236 S.W. 392

ENGLISH v. PAGE.

No. 14190.

Kansas City Court of Appeals. Missouri.

January 9, 1922.

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

"Not to be officially published."

Action by John J. English against Ira M. Page. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Lamm, Bohling & Lamm, of Sedalia, for appellant.

Montgomery & Rucker, of Sedalia, for respondent.

BLAND, J.

This is an action for a real estate broker's commission. There was a verdict and judgment for plaintiff in the sum of $369.83, and defendant has appealed.

The facts show that defendant was the owner of a farm of 140 acres located in Pettis county, Mo. In October, 1919, he employed plaintiff to procure a sale for his farm at $150 per acre. Plaintiff made an unsuccessful effort to sell the farm for cash, and in the summer of 1920 he showed it to one Roberts, who had a general merchandise store and residence property in Otterville, Mo. Plaintiff and Roberts inspected defendant's farm, and thereafter defendant, with his wife and plaintiff, inspected the store and residence of Roberts. Defendant signified his willingness to trade his farm for Roberts' residence and stock of goods, the residence to be valued at $3,000 and the stock to be valued at the cost price; the farm was to be valued at $150 per acre. The matter was submitted to Roberts, and he announced that he would not include his house. When this was made known to the defendant another proposition was submitted, to the effect that Roberts should trade for the farm at $140 per acre, defendant to take the residence and the stock of goods at the cost price. Defendant refused to do this, but agreed to exchange the farm on the basis of $140 per acre, and to invoice the stock at the present cost value. Plaintiff made several unsuccessful attempts to induce Roberts, who wanted to see the farm again, to look at it with a view to exchange on the terms submitted by the defendant. After these efforts one Williams, with whom defendant testified that he had listed the farm, got in touch with Roberts, and induced him to look at the farm, which resulted in the exchange of the farm on the basis of defendant's last offer made through plaintiff, the agreement being made in the presence Of Williams, and a written contract drawn by an attorney while Williams was present. At the instance of plaintiff the court gave the following instruction:

"The court instructs the jury that, even if you should find from the evidence that the exchange of properties was finally consummated by a person other than the plaintiff, yet if you find that the plaintiff set on foot inquiries and negotiations that finally culminated in the exchange, and that these inquiries and negotiations were the moving cause of such exchange, then your verdict should be for the plaintiff."

Defendant complains that the court erred in giving the instruction quoted, for the reason that it fails to have the jury find that plaintiff's efforts were the procuring or inducing cause of the exchange, and not merely one of a chain of causes producing it. We think this contention is well taken. It has long been settled in this state that, in order to entitle a broker to his commission, his effort must be the efficient cause in making the sale; that he must have been the procuring or inducing cause; that he must not only open up the negotiations with the purchaser, but the sale must be made through his means, and not by the intervention of some new or other party. Crain v. Miles, 154 Mo. App. 338, 348, 134 S. W. 52; Schwabe v. Estes, 202 Mo. App. 372, 375, 218 S. W. 908. The law in reference to this matter is so well settled that it should not be difficult to draw an instruction covering the point. The use of the words "inducing cause," ...