Frank Hart Realty Company v. Ryan

• Decision Date: 06 June 1921
• Parties: FRANK HART REALTY COMPANY, a Partnership, Composed of FRANK HART et al., v. GEORGE L. RYAN, Appellant
• Court: Missouri Supreme Court

232 S.W. 126

288 Mo. 188

FRANK HART REALTY COMPANY, a Partnership, Composed of FRANK HART et al., v. GEORGE L. RYAN, Appellant

Supreme Court of Missouri, First Division

June 6, 1921

Appeal from Stoddard Circuit Court. -- Hon. W. S.C. Walker, Judge.

Affirmed.

Wammack & Welborn for appellants.

(1) Do the undisputed facts constitute an abandonment, a modification or a substitution of the so called Monday sale for the one claimed to have been made on Saturday? It is our contention that they do, and if so, the judgment can not stand, for it is the law that under such a state of facts the plaintiff must declare on the modified or substituted contract and predicate recovery thereon. Carman v Harrah, 182 Mo.App. 376; Gifford v. Willman, 187 Mo.App. 38; Car Co. v. Mill Co., 227 S.W. 74. (2) The mere substitution of one contract for another is a sufficient consideration to support the new contract. Welch v. Mischke, 154 Mo.App. 735; Koslosky v Bloch, 191 Mo.App. 260; Smith v. Crane, 169 Mo.App. 708. (3) The question of a modified or substituted contract is for the court to determine as it involves a question of pleading.

J. L Fort for respondent.

(1) The doctrine of altered or modified contracts has no application to an executed or performed contract. Car Co. v. Mill Co., 227 S.W. 74; 13 C. J. 590; Henning v. Company, 47 Mo. 431; Lanitz v. King, 93 Mo. 519; Brigham v. Company, 220 S.W. 915. The contract between respondents and appellant by which appellant promised to pay respondents a commission if they would find a purchaser for his land ready, able and willing to buy the same, was fully performed on Saturday, and their commission was earned when they found Sherwood, Minton and Thompson as purchasers and brought them face to face with appellant. (2) There was nothing in respondents' pleadings justifying the giving of evidence or instructions respecting the Monday transactions. State v. Ellison, 270 Mo. 654, 195 S.W. 724; Martin v. Company, 227 S.W. 132; Wenzlick v. Company, 224 S.W. 60; Hassenbach v. Kleissle, 224 S.W. 75; Smith v. Black, 231 Mo. 690. The cases above cited hold that jurisdiction is the right to decide points in issue under the pleadings -- not issues outside of the pleadings. This being true, yet both appellant and respondents gave evidence and asked and received instructions from the court relating to the effort to sell this land on the following Monday. The evidence thus offered was not objected to by either appellant or respondents, and on the issue of the efforts made on Monday to sell this land respondents were beaten and they have not appealed, and they are entirely unable to see upon what principle appellant may now, in this court, derive any advantages from the errors which he, along with respondents, invited the trial court to commit, and in which appellant came out in the flying colors of victory.

OPINION

GRAVES, J.

Because of diverse views entertained by the judges of the Springfield Court of Appeals, this cause reaches us upon certification from that court. The plaintiff is a co-partnership engaged in the sale of real estate. Defendant owned 458 acres of land near Dexter in Stoddard County. The diverse views of our learned brothers of the Court of Appeals call for the real issues in the case, as such issues are made by the pleadings. After alleging the co-partnership of plaintiff, giving the names of the co-partners, and describing the real estate, owned by defendant, the petition then proceeds:

"That on or about the -- day of May, 1917, the plaintiff entered into a contract with the defendant, not in writing, whereby it was agreed that if plaintiff would procure a purchaser for the defendant's said real estate, which was located about one quarter of a mile in a southeastern direction from said City of Dexter, he, the defendant, would pay the plaintiff two and one half per cent of the amount realized on the sale of said real estate, and at $ 125 per acre, there being 458 acres of said real estate, and at $ 125 per acre would amount to $ 57,250, and that two and one half per cent of said amount amounts to $ 1,431.25.

"That after the making of said contract the plaintiff immediately went to work to procure a purchaser for said farm, who was ready, able and willing to purchase the same at the agreed price and sum of $ 57,250, and that plaintiff did, on the 13th day of May, 1918, secure a purchaser for said farm, who was ready, able and willing to pay the defendant the sum of $ 57,250, for said farm on such terms and conditions as the defendant had agreed to sell the same, in consequence of which there became due from the defendant to the plaintiff the sum of $ 1,431.25, which sum is now due and owing by the defendant to the plaintiff, and payment whereof has been refused by the defendant, though he had been requested to pay the same to the plaintiff.

"Wherefore, plaintiff prays judgment against the defendant for the sum of $ 1,431.25, with six per cent interest thereon from the 13th day of May, 1919, together with costs of suit."

The answer was a simple general denial. Plaintiff had a verdict for the sum of $ 1,425, upon which a judgment was entered. From such judgment the defendant appealed.

I. It is admitted by defendant that the plaintiffs were at one time authorized by him to sell the lands for him at $ 125 per acre, and that he agreed to pay the commission of two and one half per cent upon the aggregate amount of sale. He lived in Indiana, and came to Dexter shortly after receiving a telegram notifying him that the land had been sold. Whilst admitting that plaintiff had been authorized to sell the land at $ 125 per acre on an agreed commission of two and one half per cent, the defendant urged that the authority had been withdrawn some time before the sale. This therefore became a controverted point. Defendant arrived at Dexter, on Thursday, and the three men who had been procured as purchasers by plaintiff were ready and willing to buy at the stipulated price, but defendant demanded $ 60,000 for the land. This was upon Saturday, and this sale was lost through the act of the defendant. In the record and briefs this is called the Saturday transaction.

On Monday plaintiffs notified defendant that inasmuch as buyers (who were ready and willing to buy, and who were responsible) had been found, he would have to pay the commission. In this situation, defendant told plaintiffs to see their prospective buyers, and that he would take the price of $ 125 per acre, or $ 57,250, instead of the $ 60,000 demanded by him Saturday. Plaintiff failed to get one of the three parties (who were ready and willing upon Saturday) to further consider the trade. According to plaintiffs' evidence it was then agreed that the plaintiff firm should take the place of the third purchaser, and that the land was to be divided, and each purchaser was to be only liable for his part. Further plaintiff firm was to have credit on their purchase for $ 1000 for what they had done. This sale fell through, according to the view of plaintiffs by reason of the fact that defendant demanded that the three purchasers should stand responsible for the whole of the land, and not for their respective shares. This was also a controverted question. In the record, this latter deal is denominated the Monday's transaction. This sufficiently covers the facts for the questions involved.

II. The majority opinion of the Court of Appeals affirmed the judgment. The dissenting judge took the view that by the Monday's transaction there was a substituted contract and for that reason there could be no recovery on the refusal of defendant to sell on Saturday at the price of $ 125 per acre. The general rule of law is, that where one contract has been submitted for another, the recovery must be under the substituted contract. This, because the rights of the parties would be measured by their last agreement. In the case at bar, the question is whether or not the facts show a substituted contract. The petition clearly declares upon an agreement to sell this farm at $ 125 per acre for a commission of two and one half per cent. Such a contract is fully performed when the real-estate agent procures purchasers, who are ready, able and willing to purchase at that price. The...