Forsythe v. Albright
| Decision Date | 09 July 1910 |
| Citation | 130 S.W. 1126,149 Mo.App. 515 |
| Parties | JOHN E. FORSYTHE, Respondent, v. EUGENE ALBRIGHT, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Thos. J. Seehorn, Judge.
Judgment affirmed.
Halbert H. McCluer and Wm. B. Yoder for appellant.
(1) The evidence is not sufficient to entitle the plaintiff to recover, and the court erred in refusing to instruct the jury to find the issues in favor of the defendant, as requested at the end of plaintiff's evidence, and renewed at the close of all the evidence. Zeidler v. Walker, 41 Mo.App 118; Reiger v. Bigger, 29 Mo.App. 421; Ramsey v West, 31 Mo.App. 676; Kimberly v. Henderson, 29 Md. 515. (2) The court erred in admitting the following evidence offered on behalf of plaintiff, over defendant's objections as follows: All evidence in relation to ability of Dr. Sullivan to carry out alleged contract. (3) The court erred in giving the instruction asked by the plaintiff, as modified by the court, over defendant's objections. (4) The court erred in overruling defendant's motion for a new trial.
Bruce Barnett and Paul R. Stinson for respondent.
(1) Plaintiff having adduced testimony tending to show that he produced a purchaser ready, willing and financially able to purchase defendant's property upon the terms and conditions authorized, and the defendant having been notified of that fact prior to the time he contracted for the sale of the property to another, defendant's instructions in the nature of demurrers to the evidence were properly refused. Hayden v. Grillo's Admr., 41 Mo.App. 1; Sallee v. McMurry, 113 Mo.App. 253; Perrin v Kimberlin, 110 Mo.App. 661; McCray et al v. Pfost, 118 Mo.App. 672; Goodson v. Embleton, 106 Mo.App. 77. (2) The court did not err in giving plaintiff's instruction No. 1 as modified by the court. The mere misnomer of a party in one part of an instruction is not prejudicial error. Especially since defendant's instruction, which covered the point, properly described the parties. Shortel v. St. Joseph, 104 Mo. 114.
Plaintiff, a real estate broker in Kansas City, brought this suit in a justice court to recover a commission of two hundred dollars alleged to be due him from defendant, his principal.
A trial in the circuit court before a jury resulted in a verdict and judgment for plaintiff and the cause is before us on the appeal of defendant. Material facts disclosed by the evidence of plaintiff thus may be stated: Defendant, engaged in the business of building and selling houses, built and had for sale a house on Park avenue in Kansas City. In the spring of 1906, plaintiff, at his own solicitation, obtained authority to sell the house as the agent of defendant. There was a mortgage of $ 2200 on the property. The price fixed by defendant was $ 5250, and the terms on which he authorized a sale to be made required the purchaser to assume the mortgage, to make a down payment of $ 500, and to pay the remainder of the purchase price (including interest) in monthly installments of $ 30 each.
The property could not be sold at that price and in the following autumn, defendant reduced the price to $ 5000, the terms to remain the same. Plaintiff found a customer--a Dr. Sullivan--who, at first, tried to beat down the price to $ 4750. Defendant would not consent to any reduction. During the negotiations, defendant and plaintiff went together to see Dr. Sullivan, at his office, and at the interview, defendant made it clear that he would not take less than $ 5000 for the property. The doctor promised to give his answer the next day at eleven o'clock and as they left the office, defendant said to plaintiff, "stay with him and you will sell it." A day or two later, plaintiff sold the property at the price and on the terms authorized, and a written memorandum of the sale was made. Defendant was notified of the sale by plaintiff and promised to close the deal and to deliver the abstract. Later, he sold the property to another person and this suit followed. Plaintiff was unable to produce at the trial the written contract signed by Dr. Sullivan, but he had a copy of that instrument and tried to introduce it in evidence. Defendant objected and after repeated attempts of plaintiff to lay a foundation for the introduction of the copy, the court finally excluded it on the ground that a proper foundation had not been laid for its introduction. The evidence of plaintiff, however, tends to show that Dr. Sullivan was ready, willing and able to buy the property on the terms proposed; that he was presented to the defendant as a customer possessing those qualifications and that defendant's failure to close the sale was not due to any fault of plaintiff or his customer, but was due to the desire of defendant to make a sale without having to pay an agent's commission.
The evidence of defendant...
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