Frank Hart Realty Co. v. Ryan

• Decision Date: 14 January 1920
• Docket Number: No. 2541.,2541.
• Citation: 218 S.W. 412
• Parties: FRANK HART REALTY CO. v. RYAN.
• Court: Missouri Court of Appeals

218 S.W. 412

FRANK HART REALTY CO. v. RYAN.

No. 2541.

Springfield Court of Appeals. Missouri.

January 14, 1920.

On Motion for Rehearing, February 28, 1920.

Appeal from Circuit Court, Stoddard County; W. S. C. Walker, Judge.

Suit by the Frank Hart Realty Company, a copartnership composed of Frank Hart and others, against George L. Ryan. Judgment for plaintiffs, and defendant appeals. Case certified to Supreme Court.

Gee, Wammack & Welborn, of Bloomfield, for appellant.

J. L. Fort, of Dexter, for respondents.

FARRINGTON, J.

The judgment in this case in the trial court was against George L. Ryan, the appellant, for the sum of $1,425. The suit is for a commission on an alleged contract of agency for the sale of land. It is alleged in the petition that the defendant agreed to pay 2½ per cent. commission for the sale of his farm, consisting of 458 acres at $125 per acre, making the total sale price $57,250. Without detailing the evidence adduced at the trial, it is sufficient for the purpose of this opinion to state that the plaintiffs found three `men who were shown to be solvent and who met the qualifications of a purchaser such as the law requires an agent to produce in order to claim commission; that is, they were ready, willing, and able to buy the defendant's land. There is no dispute that their attention was called to this farm through the endeavors of the parties composing the plaintiffs' partnership. The defendant admitted to have placed the farm for sale in plaintiffs' hands, agreeing to pay them 2½ per cent. commission on the sum of $57,250, but claims to have withdrawn such proposition from the plaintiffs some time before the time when the prospective purchasers were produced. This was a contested fact, and was submitted to the jury in the instructions.

It appears from the evidence that the defendant, who is a resident of Indiana, came to Dexter, Mo., on a telegram from plaintiffs that a purchaser had been found. He arrived there either on Thursday or Friday of the week. At any rate, on Saturday the three men before mentioned agreed between themselves and one of plaintiffs' partnership that they would buy the entire tract at $125 an acre, and the testimony of these three men as well as plaintiffs indicated that the deal would have been consummated so far as they were concerned" had not the defendant increased the sale price of this land to $60,000.

As we view what is termed in the evidence as the Saturday transaction, plaintiffs made out a case entitling them to commission, and the only disputed issue of fact concerning the Saturday transaction was whether before that time the defendant had withdrawn from the plaintiffs the right to sell the land at such price. Where the owner of land refuses to sell after the broker has produced a buyer who is able, ready, and willing to buy on the terms proposed, the commission is earned. Sallee v. McMurry, 113 Mo. App. 253, 88 S. W. 157. There is a flood of authority on this proposition.

The record also shows that on the Monday following the Saturday transaction, and after the plaintiffs had informed defendant that they would hold him for commission, the defendant told them to get their men together; that he would accept $125 an acre. Plaintiffs got in touch with the three prospective buyers on Monday, but were unable to induce one of the number who had been willing Saturday to then buy. Two of them were ready, willing, and able, and plaintiffs' evidence tends to show that the plaintiffs' company then stepped into the place of the third man, and that in the Monday transaction it was agreed between the three purchasers and the defendant that each of the three purchasers would take a portion of the land at $125 an acre, making the total price $57,250, but that each purchaser Was to be only responsible for his proportional part of that sum, and that it was agreed that in consideration of the plaintiffs' purchasing a portion of the land their consideration as agents for the sale of the entire tract was to be $1,000 instead of $1,425.

It further developed under testimony introduced by plaintiffs that the defendant afterwards refused to carry out this proposition, claiming that all three purchasers must be bound for the full purchase price of $57,250. A controversy arose between the parties on this deal, and no sale was made. Consequently plaintiffs brought this action on the contract for 2½ per cent. and claimed that they were entitled to full compensation, in that in the Saturday transaction, which the defendant refused to carry out, they had performed their part of the service.

The court submitted the case to the jury on two theories, and predicated a recovery for plaintiffs based on the Saturday transaction, which carried with it a recovery to the amount of $1,425. The second instruction was predicated upon the Monday transaction, which carried with it a recovery of but $1,000. The verdict of the jury indicated that it found for plaintiffs under the first instruction. In this connection it will be borne in mind that the petition filed in the case sought damages only on the contract for 21/2 per cent., and did not seek to recover under the second contract, or the Monday transaction shown in the evidence.

Error is therefore alleged that the issues submitted in the instructions were broader than those contained in the pleadings. This, of course, is a well-established rule in this state, and must be and is upheld in cases where those seeking to enforce it are in position to claim its benefits. The record presented to us discloses that the plaintiffs went into and introduced testimony concerning this Monday transaction without any objection whatever from the defendant, and that the defendant cross-examined and treated the Monday transaction as an issue in the case. There were no instructions asked by the defendant to exclude any liability concerning the Monday transaction, and, on viewing defendant's instructions Nos. 4 and 5, it is evident that he was seeking to escape liability in these instructions on the ground that there had been no meeting of the minds of the parties in the contract shown in the evidence to have been made on Monday. The jury found for the plaintiffs on the theory presented by their petition. Where at a trial evidence which is outside of the pleading is introduced without objection, it is not error to instruct on these matters as well as on the case made by the pleadings. Menefee v. Diggs, 186 Mo. App. 659, 172 S. W. 427; Mellor v. Railway Co., 105 Mo. loc. cit. 471, 16 S. W. 849, 10 L. R. A. 36.

A different case would be presented had the jury found for the plaintiffs on the contract which was sworn to, but which was not pleaded. It was not error to assume in the plaintiff's first instruction that the compensation due under the contract was 2½ per cent., as there was no controversy concerning that fact, both plaintiffs and defendant agreed on having made such a contract, and the battle was around the question of whether such contract had or had not been terminated prior to the time plaintiffs claim to have found purchasers. It has been often held that it is not reversible error to assume in instructions uncontroverted facts. Irwin v. Wilhoit, 199 S. W. 588; Cornovski v. Transit Co., 207 Mo. loc. cit. 273, 274, 106 S. W. 51.

The last point raised by appellant is that the court should have granted a new trial on the ground that a juror' sat on the jury who had married the niece of one of the plaintiffs. Under section 7283, Revised Statutes of 1909, under a proper challenge this juror should have been excused. The appellant, however, is in no position to raise any question concerning this matter, for the reason that the evidence shows that at the trial the defendant did not examine the jury at all voir dire, and further fails to show that the plaintiffs' attorney asked questions that would have disclosed the relationship which was afterwards found to exist. It has been held a number of times that an appellant who raises such a question for the first time in a motion for new trial comes too late, and especially would this be true in a case where it is shown, as here, that the defendant did not make any examination of the jurors before submitting the case to them for determination. See City of Tarkio v. Cook, 120 Mo. loc. cit. 11, 25 S. W. 202, 41 Am. St. Rep. 678; State v. Brewer, 109 Mo. loc. cit 652, 19 S. W 96; Easley v. Mo. Pac. Ry. Co., 113 Mo. 236, 20 S. W. 1073; State v. Collins, 86 Mo. 245.

The verdict in the case was signed by 11 of the jurors, and there is no evidence that either party or their attorneys knew or thought of the fact that the juror had married the niece of one of the plaintiffs.

As we view this case, the plaintiffs introduced evidence which sustained a recovery under their petition, under instructions and a trial which do not contain reversible error. The judgment must therefore be affirmed.

STURGIS, P. J., dissents, and BRADLEY, J., concurs.

STURGIS, P. J. (dissenting).

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