F. H. & C. B. Gerhardt R. E. Co. v. Marjorie R. E. Co.

• Decision Date: 06 June 1910
• Court: Missouri Court of Appeals
• Parties: F. H. & C. B. GERHARDT REAL ESTATE CO. v. MARJORIE REAL ESTATE CO.

129 S.W. 419

144 Mo. App. 620

F. H. & C. B. GERHARDT REAL ESTATE CO. v. MARJORIE REAL ESTATE CO.

Springfield Court of Appeals. Missouri.

June 6, 1910.

1. BROKERS (§ 88)—ACTION FOR COMMISSIONS —INSTRUCTIONS.

In an action by brokers for commissions, instructions held sufficient.

2. BROKERS (§ 85)—COMMISSIONS—PROCURING CAUSE OF SALE—EVIDENCE.

In an action for commissions for selling real estate, to show that plaintiff was not the procuring cause of the sale, defendant could show that some other agent was the procuring cause.

3. BROKERS (§ 53)—COMMISSIONS—PROCURING CAUSE OF SALE.

It is not sufficient for a broker to show that his efforts were one of a chain of causes culminating in the sale, but he must show that his efforts were the procuring or inducing cause.

4. BROKERS (§ 55)—COMMISSIONS—PROCURING CAUSE OF SALE.

The owner of real estate may authorize more than one agent to sell, and in the absence of a distinct contract to the contrary, where a sale is made, the commission belongs to the agent whose efforts are the procuring cause of the sale, no matter which one may close the deal.

Appeal from St. Louis Circuit Court; O'Neill Ryan, Judge.

Action by the F. H. & C. B. Gerhardt Real Estate Company against the Marjorie Real Estate Company. Judgment for defendant, and plaintiff appeals. Affirmed.

E. C. Crow and J. M. Holmes, for appellant. Stern & Haberman, for respondent.

COX, J.

Action for commission in effecting sale of real estate. Trial by jury and verdict found for defendant, and plaintiff has appealed. The evidence shows the defendant to have been the owner of certain real estate in the city of St. Louis, and that he exchanged this property for certain other property with one Jesse French, said French agreeing to assume the incumbrances upon defendant's property to the amount of $65,000, and to pay $45,000 cash as the difference in value between the two properties. The evidence in this case is very voluminous, but its general tenor is that there were two real estate firms figuring in this deal—the plaintiff and a firm known as the Weisels-Gerhardt Real Estate Co.—and the contest at the trial seemed to be to determine which one of these real estate companies had been the means of procuring the sale. The errors complained of by plaintiff were in the giving of instructions on behalf of defendant by the court. In order to fully understand the action of the court upon these instructions, it will require the setting out of the instruction asked and given on behalf of the plaintiff which is as follows:

"(1) The court instructs the jury that if you are satisfied from the evidence that the defendant employed the plaintiff as a real estate agent to effect an exchange of its property described in the petition for the property of Jesse French described in the petition, said French to pay in addition a sum in cash and to assume an incumbrance of sixty-five thousand ($65,000) dollars then existing on the property of defendant, then if you further find that plaintiff entered upon such employment, and entered into active negotiations with the said French for the purpose of affecting such exchange, and further find that prior to the consummation of such negotiations, defendant, without the knowledge or consent of plaintiff, took said negotiations into its own hands, and without the knowledge or consent of plaintiff closed and carried out the sale or exchange with said French shown by the evidence, then if you are satisfied from the evidence that the sale or exchange carried out by defendant and said French, resulted from the efforts and negotiations of plaintiff as aforesaid, and that said efforts and negotiations were the procuring cause thereof, you will find a verdict for plaintiff on the second count of the petition in such sum as you may find from the evidence the services of the plaintiff were reasonably worth, not exceeding however the sum of five thousand dollars."

Instructions given on behalf of defendant of which complaint is now made are as follows:

"(2) The court instructs the jury that the burden of proof is on the plaintiff to establish by a preponderance of the evidence that the plaintiff was the efficient and procuring or producing cause of the sale by defendant to Jesse French, and unless you find that the plaintiff was the efficient and procuring or producing...