Finley v. Handley

• Decision Date: 22 December 1906
• Parties: FINLEY, Respondent, v. HANDLEY et al., Defendants, HANDLEY, Appellant
• Court: Missouri Court of Appeals

98 S.W. 803

121 Mo.App. 358

FINLEY, Respondent, v. HANDLEY et al., Defendants, HANDLEY, Appellant

Court of Appeals of Missouri, St. Louis

December 22, 1906

Appeal from St. Louis City Circuit Court.--Hon. James E. Withrow, Judge.

REVERSED.

Judgment reversed.

John B. Dempsey for respondent.

OPINION

GOODE, J.

This is an action instituted by plaintiff to recover a commission for the sale of certain lots situate in the city of St. Louis. Plaintiff is a real estate agent in said city. The lots belonged to Mary J. Handley, one of the defendants and the testimony tends to prove plaintiff was given verbal authority by George Handley, her husband, to sell the lots. It is certain there never was any written authority from the owner of the lots to plaintiff to act as agent in the sale of them; wherefore defendants contend plaintiff's action in offering them for sale was a misdemeanor under section one of the Act of the Legislature, approved March 28, 1903, providing that in cities of 300,000 inhabitants, or more, a person who shall offer for sale any real property, without the written authority of the owner of such property, or his attorney in fact, shall be deemed guilty of a misdemeanor. This being true it is argued that plaintiff cannot recover a commission for the sale if he was instrumental in bringing it about. At the close of the evidence in chief, the court sustained a demurrer to the evidence in favor of Mary J. Handley, and the case proceeded against her husband, the other defendant, resulting in a verdict in plaintiff's favor for $ 269.12.

The effect of the statute in question on the right of a real estate agent to recover commission on the sale of property was decided in the case of Rothwell v. Gibson, 121 Mo.App. 279, 98 S.W. 801. In an opinion in that case prepared by the presiding judge and concurred in by all the members of this court, it was held there can be no recovery of commission unless the agent had authority in writing to offer the property for sale.

The judgment is reversed. All concur.