Evans v. Swetnam

• Decision Date: 05 December 1921
• Docket Number: No. 14138.,14138.
• Citation: 235 S.W. 502
• Parties: EVANS et al. v. SWETNAM.
• Court: Missouri Court of Appeals

235 S.W. 502

EVANS et al. v. SWETNAM.

No. 14138.

Kansas City Court of Appeals. Missouri.

December 5, 1921.

Appeal from Circuit Court, Randolph County; A. W. Walker, Judge.

"Not to be officially published."

Suit by L. L. Evans and another against Earl E. Swetnam. Judgment for defendant, and plaintiffs appeal. Affirmed.

W. B. Stone and J. H. Whitecotton, both of Moberly, for appellants.

Willard P. Cave, of Moberly, for respondent.

ARNOLD, J.

This is a suit to recover commission for the sale of real estate. Plaintiffs were in the real estate business in the counties of Macon and Randolph, and adjoining counties in Missouri. Defendant was a farmer owning 440 acres of land near Jacksonville in Randolph county. On August 12, 1919, the parties hereto entered into the following contract of agency:

"This agreement witnesseth: That I, Earl E. Swetnam, Jacksonville, Randolph county, Missouri, do hereby employ Evans & Lucas as my agent to sell the following described real estate, to wit:

"440 more or less.

"One hundred dollars per acre, all in Randolph county, Mo.

"Said agent is hereby authorized to sell said land upon the following terms and conditions:

"$ Cash in cash; or $____ in cash and the balance in deferred payments as follows:

"$_____ in ____ and $____ in ____, the deferred payments to bear ____ per cent. interest per annum.

"I hereby agree to furnish said agent or any customer he may find, upon demand, an abstract of title showing perfect fee-simple title in me to said land brought up to the date of said demand.

"As compensation for selling said land upon the terms and conditions above set forth or on such other terms as I" may accept, I hereby agree to pay said agent the following commissions, to wit: ____ per cent. commission on above-named selling price of said land, and in addition thereto, all sums over and above said named selling price for which said agent may succeed in selling, or negotiating the sale of, said land. I hereby agree to 10 days' notice, in writing, to cancel this contract.

"Randolph County, Mo., Aug. 12, 1919.

                                   "Earl E. Swetnam."
                

On the back of said contract, introduced in evidence, appears the following:

"340 acres in this tract, 2 houses.

"109 acres join Webster.

"2d. If all sold together 2 per cent. and all over one hundred dollars per acre for selling."

The petition alleges that plaintiffs were authorized to sell said land at $100 per acre cash when possession was given; that plaintiffs were to have as their commission for procuring a purchaser for said land 2 per cent. of the purchase price of said land at $100 per acre, and all sums of money over and above the $100 per acre for which the land was sold, and that on August 29, 1919, they procured a purchaser for said land by the name of W. H. Donald, of Wayne county, Iowa.

Further, the petition alleges that said purchaser "was financially able and willing and ready to purchase the defendant's land, and offered to purchase said defendant's land at the price of $103 per acre, or a total of $45,320 for all of said land, but that defendant refused to sell said land to the purchaser so procured," The prayer is for judgment for "2 per cent, of $44,000, and all sums of money over that amount, which would give them $880, 2 per cent. commission, and $1320, being the amount over the sum which the defendant agreed to take for said land, and which he agreed to give them as extra commission, and would make the amount of total commission the sum of $2,200," and for costs.

The amended answer is, first, a general denial, and then a specific denial of each material allegation of the petition; and further the answer affirmatively declares that—

"The only agreement or contract which defendant ever had with the plaintiffs for the sale of said land was a written contract whereby the terms of said contract provided for the sale of defendant's real estate for cash to which plaintiff agreed, and that plaintiffs never sold nor procured a buyer for defendant's farm for cash."

The cause was tried to a jury, and the verdict was for defendant. Motion for new trial was overruled, and plaintiffs appeal.

The testimony tends to show that plaintiffs produced one W. H. Donald, of Seymour, Iowa, as a prospective buyer of the land; that they showed the farm to Donald, who said he would take it at $103 per acre, and plaintiffs notified defendant that they had drawn up a sale contract which they had left for defendant's signature at a certain bank, of which defendant was vice president. The instrument was drawn by plaintiffs, and recited a sale by defendant to Donald, the consideration named being $45,320, upon which purchase price the said Donald was to pay $1,500 down, and the balance on the 1st day of March, 1920.

The testimony further shows that defendant called at the bank, saw the proposed contract, and refused to sign it because it was not in accordance with the terms of the agency contract given plaintiffs, in that it did not specify that the purchase price was to be paid in cash, but instead provided for the payment of $1,500 in cash and the balance on March 1, 1920.

There is some conflict in the testimony of the parties as to the conversation that took place between plaintiffs and defendant when plaintiffs notified defendant of the sale. Plaintiffs claim defendant stated that he had priced his land too cheap, saying:

"Since I have listed my farm with you fellows I have been trying to buy a farm, and everywhere around Cairo and Huntsville they are asking as high as $175 an acre; I tell you what I will do. Wait until morning, until I get a nice sleep over this procedure, and it might be I will pay you boys your commission and keep my own farm; it might be a money making proposition for me. If I buy a farm equal to what I have I will have to pay at least $150 an acre."

Defendant testified that "it was a cash deal, and they had not offered or consulted with me in any way about what payment was to be down," and that the clause nominating the payment of $1,500 down was inserted in the contract without his knowledge or consent.

Defendant states he told plaintiffs it was a cash deal; that it was 5 o'clock in the afternoon when he first heard they had found a buyer for his farm; that he had been hauling logs all day, was a mile and a half away from home, and was in no shape to go to the bank that afternoon, and told them he would be there the next morning; that "they said they would be there to meet me; I came up there to see what they had to do." Defendant further stated that he "didn't think" he entered into the conversation detailed by plaintiffs referred to above.

On the following Sunday morning defendant went to Ardmore, Mo., and had another conversation with plaintiffs. There is not much difference between the parties as to what took place at this time. It is practically agreed that defendant stated he would accept a cash payment of $5,000, and that he asked plaintiffs to send a telegram to Donald to that effect; this plaintiffs refused to do, and suggested that defendant take the matter up with Donald as to advance payment.

Thereafter, at the request of defendant, a telegram was sent to Donald by P. W. Campbell, cashier of the College Mound Security Bank, of which defendant was vice president, as follows:

"Swetnam refused to sign contract 440 acres demands draft full purchase price reach College Mound Security Bank Friday 29."

Presumably in response to this telegram, one J. W. Martin, agent of Donald, came down from Iowa, and with plaintiff Evans and one George Walters, of Ardmore, Mo., went to defendant's home and made an attempt to close the deal. There is not much controversy between the parties as to what occurred at this time. Plaintiff Evans, Martin, and Walters all state that Martin ...