Forsythe v. Allbright

• Decision Date: 09 July 1910
• Citation: 149 Mo. App. 515,130 S.W. 1126
• Parties: FORSYTHE v. ALLBRIGHT.
• Court: Missouri Court of Appeals

130 S.W. 1126

149 Mo. App. 515

FORSYTHE v. ALLBRIGHT.

Kansas City Court of Appeals. Missouri.

July 9, 1910.

Rehearing Denied October 3, 1910.

1. BROKERS (§ 54)—EMPLOYMENT CONTRACT— PERFORMANCE.

Where plaintiff, employed to sell defendant's house, procured a purchaser, on defendant's terms, who was ready, able, and willing to purchase the house, and informed defendant thereof, but defendant sold to another person, in order to avoid paying an agent's commission, plaintiff was entitled to commissions as for a complete performance.

2. BROKERS (§ 43)—EMPLOYMENT CONTRACT— WRITING.

A broker, authorized by parol to sell lands, may recover compensation on performance.

3. BROKERS (§ 85)—ACTIONS FOR COMMISSION —MATERIALITY.

In an action for broker's commissions, in which plaintiff proved that he introduced to defendant a customer who was ready, willing, and able to buy on the authorized terms, evidence that the oral negotiations and agreements between plaintiff and the customer were merged in the written contract which they signed was immaterial.

4. APPEAL AND ERROR (§ 837)—RECEPTION OF EVIDENCE—OBJECTIONS—ESTOPPEL.

Where defendant succeeded in keeping a contract from being introduced in evidence, though it is in the record, it will not be considered, as defendant is estopped to claim that plaintiff had no case, under the terms of such contract.

Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.

Action by J. E. Forsythe against Eugene Allbright. Judgment for plaintiff, and defendant appeals. Affirmed.

H. H. McCluer and William B. Yoder, for appellant. Bruce Barnett and Paul R. Stinson, for respondent.

JOHNSON, J.

Plaintiff, a real estate broker in Kansas City, brought this suit in a justice court to recover a commission of $200 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 $2,200 on the property. The price fixed by defendant was $5,250, 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 $5,000, the terms to remain the same. Plaintiff found a customer—a Dr. Sullivan—who, at first, tried to beat down the price to $4,750. 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 $5,000 for the property. The doctor promised to give his answer the next day at 11 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,...