Fowler v. Thomson

• Decision Date: 31 January 1922
• Parties: FOWLER v. THOMSON.
• Court: Kentucky Court of Appeals

236 S.W. 1047

193 Ky. 593

FOWLER v. THOMSON.

Court of Appeals of Kentucky.

January 31, 1922

Appeal from Circuit Court, Hopkins County.

Action by W. S. Thomson against D. F. Fowler. Judgment for plaintiff, and defendant appeals. Reversed.

Laffoon & Waddill, of Madisonville, for appellant.

Gordon Gordon & Moore, of Madisonville, for appellee.

SAMPSON J.

Appellee Thomson, commenced this action in the Hopkins circuit court against appellant, Fowler, to recover of the latter $690.89 alleged to be due Thomson, a real estate agent, as commissions for the sale of the farm of appellant, Fowler, to one Whitfield in 1919. The petition avers:

"That on the 21st day of February, 1919, he (Thomson) made and entered into an agreement and contract with the defendant (Fowler), whereby the defendant placed in the hands of the plaintiff for sale, as a real estate agent, 400 acres of land, and authorized the plaintiff to sell or procure a purchaser for the said 400 acres at not less than $80 per acre, and upon such terms as might prove satisfactory to the defendant, and that for his services the defendant agreed and promised to pay him a reasonable compensation, which was then and there agreed to be a sum equal to 2 1/2 per cent. of the total amount of the consideration for which any of the said land might be sold."

Following this the petition avers that the plaintiff, Thomson, found and presented a purchaser to Fowler, who bought 326 1/2 acres of the land at the price of $85 per acre, or a total of $27,752.50, but that defendant, Fowler, refused to pay plaintiff his commissions, although the same was demanded of him and are long past due.

It is the contention of appellant, Fowler, against whom judgment was entered in the lower court for $690.89 as commissions that the contract declared upon is an express one, and not an implied contract, and that the plaintiff, having declared upon an express contract, was not entitled to prove an implied contract, or to have a quantum meruit recovery on an implied contract, in the absence of an amendment of the pleading so as to support such implied contract. The answer controverts the averments of the petition, and in a second paragraph affirmatively pleads facts tending to show that appellee, Thomson, did not procure or furnish a purchaser for the land, and was not entitled to commissions on the sale. The affirmative matter in the answer was controverted of record by agreement of the parties. The evidence shows, in substance, that appellee, Thomson, approached appellant, Fowler, in February, 1919, and asked Fowler if he wanted to sell his farm, to which Fowler replied that he would sell 400 acres at $80 per acre, and pay Thomson a commission of 2 1/2 per cent. if Thomson sold it at that price, but would not list the farm with Thomson for sale. Then Thomson told Fowler that he had a prospective purchaser for his farm, whom he would bring to look it over. A few days later Thomson did take a prospective buyer to look at the Fowler farm, but nothing came of this. Fowler then told Thomson that he would not take $80 per acre for the farm unless said proposition was accepted at once, but there is some evidence tending to show that there was an arrangement...