La Force v. Washington University

• Decision Date: 16 May 1904
• Citation: 81 S.W. 209,106 Mo. App. 517
• Parties: LA FORCE v. WASHINGTON UNIVERSITY.
• Court: Missouri Court of Appeals

81 S.W. 209

106 Mo. App. 517

LA FORCE v. WASHINGTON UNIVERSITY.

Kansas City Court of Appeals. Missouri.

May 16, 1904.

BROKERS—SALE BY OWNER—COMMISSIONS.

1. Where parties stipulate that an agency to sell property is limited to a definite period, it

will terminate at the expiration of the period; and, if a sale has not been made within the time, no compensation can be recovered in the absence of fraud, on account of the subsequent sale by the owner.

2. Plaintiff was given an option by defendant to sell property within a specified time, and at the expiration of the time the option was extended. Defendant on a subsequent request declined to further extend the time, but expressed the hope that plaintiff would sell the property, stating he would be glad to assist him. After the expiration of the time limited for the sale, defendant sold the property. Held, that plaintiff was not entitled to commissions on the ground of an implied authority to sell the property.

Appeal from Circuit Court, Jackson County; Wm. B. Teasdale, Judge.

Action by Felix L. La Force against the Washington University. From a judgment for defendant, plaintiff appeals. Affirmed.

Haff & Michaels and L. W. McCandless, for appellant. Lathrop, Morrow, Fox & Moore and Samuel W. Sawyer, for respondent.

ELLISON, J.

This action was instituted by plaintiff to recover a commission for the sale of real estate in Kansas City, Mo., belonging to defendant. The trial court found against the plaintiff, and, judgment being entered for defendant, the former appealed.

It appears that the plaintiff resided in Kansas City, and that the defendant was at St. Louis, and that they entered into a written contract concerning the sale of the property. This contract was executed on the 21st of October, 1901, and was to be in force for the limited time of 90 days, which period expired January 21, 1902. But some 10 or 12 days before the limit expired it was extended, by mutual agreement, for a period of 30 days further; such extension expiring on February 21, 1902. Before the contract was executed, plaintiff thought he could sell the property if he had the exclusive control of it. He had especially in view as purchasers a firm of wholesale merchants in Kansas City. We here set out the contract:

                          "Kansas City, Mo., Oct. 21, 1901
                

"This memorandum of agreement, by and between Washington University, a corporation under the laws of Missouri, party of the first part, of St. Louis, Missouri, and Felix L. La Force, of Jackson county, Missouri, party of the second part, witnesseth: Said party of the first part, for and in consideration of the sum of one dollar paid by second party, the receipt of which is hereby acknowledged, does hereby give the said second party the exclusive option and privilege to buy their southeast corner of Eighth and May streets, Kansas City, Missouri [describing it]. The price agreed upon by said first party to sell to said second party, is the sum of fifty-six thousand and five hundred dollars, net, for the 150×142 feet, no commission to be paid by said first party. Terms: Cash, or one-third cash; deferred payments to bear interest at five per cent. from January 21st, 1902. This contract or option to purchase is to run for ninety days from this date. In the event of purchase by the said second party or his assigns, the said first party is to convey said real estate free and clear of all incumbrance, except West Terrace Park assessment; and they also agree to furnish a complete abstract from government down to date, also certificates as to judgment and taxes. In the event second party elects to buy said real estate within the time herein agreed, or sells the same, the said first party is to give the second party or his assigns thirty days' extra time to examine title and close the deal. Said thirty days' extra time is to date from the date of expiration of this contract. In the event said second party fails to take advantage of the terms of this contract as herein specified, this instrument becomes void."

On the reverse side is the following:

                              "St. Louis, Mo., Jan. 10, 1902
                

"By mutual consent the above contract is extended until February 21, 1902."

During the first 90-day period plaintiff made diligent effort to sell, but towards the latter part he saw he would not be able to consummate a sale within the time limited, and he sought an extension for another period of 90 days. The defendant refused that length of time, but did extend the contract for a period of 30 days, as already stated, and as is shown in the copy just set out. Plaintiff faithfully pursued his endeavor to sell through the extended time, but without success. He endeavored to obtain another extension within which he hoped to make a sale, but defendant refused. Several months after the expiration of the extended time, defendant sold the property to the wholesale firm with whom plaintiff had been negotiating from the beginning. Plaintiff claimed the usual and customary commission on sales of that magnitude, which defendant refused to pay, contending that it was under no obligation to pay any amount.

The parties agree, as, of course, they must, that the written contract governs and determines their relations. Plaintiff's contention is that the contract secured to him an option on the property and also an agency to sell it, or that, as to an agency, it was, at least, ambiguous, and that when interpreted with the aid of evidence, consisting principally of prior correspondence, it became manifest that plaintiff had an agency as well as an option. Defendant's position is that the contract is not ambiguous, and that it merely gave plaintiff an option on the property at the price named for the period to which it was extended. Plaintiff's contention is based on the words in the latter part of the contract: "In the event second party elects to buy said real estate within the time herein agreed, or sells the same," the first party is to give time to examine title, etc. But defendant takes the further position that, if it be conceded that the contract, in addition to giving plaintiff an option, also made him an agent to sell the property, yet the agency was specifically limited to a certain time, and, the sale not having been made within that time, he cannot recover.

Since the case may be disposed of on the latter suggestion of the defendant, we will consider it from that standpoint, thereby rendering it unnecessary to say whether...