Gaty v. Foster

• Decision Date: 06 July 1885
• Citation: 18 Mo.App. 639
• Parties: JOHN W. GATY, Respondent, v. F. S. FOSTER Appellant.
• Court: Kansas Court of Appeals

18 Mo.App. 639

JOHN W. GATY, Respondent, v. F. S. FOSTER Appellant.

Court of Appeals of Missouri, Kansas City.

July 6, 1885

APPEAL from Johnson Circuit Court, HON. NOAH M. GIVAN, J.

Reversed and remanded.

Statement of case by the court.

This suit is brought upon a contract by which defendant employed the plaintiff as a real estate broker to sell or to find and send to defendant a purchaser for the latter's farm of 120 acres for the price and sum of $3,600. In the form of answers to questions, in the contract, the farm is minutely described by the defendant. In answer to the question, " When could you give possession?" contained in the contract, the defendant answered, " Any time." This answer contained one of the conditions on which the plaintiff was authorized to sell the farm. The contract, in conclusion provided, " and I agree to pay to Gaty five per cent. on the amount for which said premises may sell if he make a sale thereof, or finds or sends to me a purchaser." The contract was dated August 26, 1882. On October 11, 1882, H H. Anderson visited plaintiff's office, and had his attention called by plaintiff to the farm of defendant. The evidence tended to show that soon after, in the same month Anderson visited defendant's farm, and received a proposal from defendant to sell the farm for $3,600, the price named to Gaty, the defendant reserving possession until March 1, 1883. But that Anderson wanted immediate possession. That during the same month Anderson paid a second visit, with the same result. That the defendant wanted to retain possession until March, 1883; and that Anderson wanted immediate possession. That there was no bargain. That the sale was not consummated. The defendant however testified that Anderson said he would not buy the farm unless his brother could secure a farm in the same neighborhood.

On November 1, 1882, the defendant wrote a letter to plaintiff withdrawing the farm from plaintiff's hands as broker. On November 6, 1882, Anderson paid a third visit to defendant and agreed to receive possession of the farm on March 1 1883. The trade was thereupon made, the defendant retaining possession until March 1, 1883, and receiving $3,600 as the purchase price of the said farm. And on the 9th day of November, 1882, the matter was closed by the defendant executing a deed for the farm and receiving the purchase money from Anderson.

For the plaintiff the court instructed the jury:

" 1. The jury are instructed that if they believe from the evidence that the purchaser of defendant's farm, one H. H. Anderson, was directed to defendant by said Gaty, or by his exertions or advertisements, or that negotiations were begun between defendant and said Anderson through the instrumentality of said Gaty while he was acting as agent for the sale of said land; and that afterwards, within a reasonable time, said Foster sold said land to said Anderson, in pursuance of said negotiations, then the jury must find for plaintiff; although they may also believe that, subsequent to the commencement of said negotiation, said Foster may have notified said Gaty that his (said Foster's) land was withdrawn from the market."

" 2. If the jury find for plaintiff, they must assess his damages at the sum of one hundred and eighty dollars, with interest on the same at six per cent. per annum from the time the same was demanded by said Gaty from said Foster, if they believe the same was so demanded prior to the commencement of this suit."

" 3. If the jury believe from the evidence that plaintiff procured and sent to defendant a person who afterwards, and within a short time, purchased defendant's farm; and that such purchaser was procured and sent by plaintiff to defendant before his authority as agent had been revoked, they will find for plaintiff."

For the defendant the court instructed the jury:

" 1. The court instructs the jury that the contract of agency entered into between plaintiff and defendant was for no specified length of time, and was revoked at the pleasure of either plaintiff or defendant; and that although the defendant did sell his farm on the 9th day of November, 1882, or sooner, yet if they find from the evidence that prior to the date of sale defendant, in good faith, without any purpose to deprive plaintiff of his commission, fairly terminated said agency, the jury must find for defendant; and the fact that the purchaser of said land, when sold, was one whom the plaintiff had introduced, and that the sale was in some degree aided by the previous unsuccessful efforts of plaintiff, if unsuccessful, does not entitle him to commission or to recover in this case."

The jury thereupon returned a verdict in favor of plaintiff in the sum of $186.30, and judgment was rendered accordingly. The case has been brought here by the defendant by appeal.

J. M. SHEPHERD and O. L. HOUTS, for the appellant.

I. If, after a broker has been allowed a reasonable time to procure a buyer and effect a sale, and has failed to do so, and the seller in good faith and fairly, has terminated the agency and himself consummated the sale, it does not give the broker the right to commission because the purchaser is one whom he introduced, and the final sale, is, in some degree, aided or helped forward by his previous unsuccessful efforts. Sibbald v. Iron Co., 83 N.Y. 378; Wylie v. Marine Nat. Bank, 61 N.Y. 416. This rule the court stated correctly in the instruction given for defendant, but contradicted it in another instruction given for plaintiff.

II. The evidence here showed that after waiting a reasonable time, and after urging the agent to press the sale without success, defendant revoked the agency, and some time afterwards effected a sale himself. He had an undoubted right to revoke the agency.

III. Whether the time given was reasonable, and whether the revoking of the agency was in good faith, were questions of fact for the jury. These questions the court took from the jury and virtually said, though defendant had waited a reasonable time and plaintiff had failed to make a sale, and defendant, in good faith and fairly revoked the agency, still he was not authorized to deal with his own, but must again wait, a short time; but the length of time can have no possible bearing on the case. The question of good faith should have been left to the jury. Sibbald v. Bethlehem Iron Co., 83 N.Y. 378.

JNO. M. CRUTCHFIELD, WM. M. BRINKER, for the respondent.

I. If, after the property is placed in the agent's hands, the sale is brought about by his exertions, he will be entitled to his commissions. Or, if the agent introduce the purchaser, or discloses his name to the seller, and through such introduction or disclosure, negotiations are begun and the sale effected, the agent is entitled to his commissions though the sale be made by the owner. Tyler v. Parr, 52 Mo. 249; Bell v. Kaiser, 50 Mo. 150; Carpenter v. Rynders, 52 Mo. 278; Bailey v. Chapman, 41 Mo. 536; Oglesby v. Austin, 27 Kansas 245.

II. The broker's commissions are earned when he procures a buyer at the price named by the owner. Durkee v. R. R. Co., 29 Vermont 127; Timbermann v. Craddock, 70 Mo. 638; Phelan v. Gardner, 43 Cal. 306; Magarok v. Wadlief, 20 How. (U. S.) 221; Kimbrely v. Henderson, 29 Ind. 512; Cooke v. Fisk, 12 Gray (Mass.) 491.

III. The duty of a broker is ended when he has found a purchaser and brought the parties together. If the agency is the procuring cause at the sale the agent is entitled to his commissions. Higgins v. Moore, 34 N.Y. 417; Lyon v. Mitchell, 36 N.Y. 235; Redfield v. Tegg, 38 N.Y. 212.

IV. The change in the time when possession should be given from " at any time," to " March 1, 1883," cannot impair plaintiff's right to recover. Woods v. Stephens, 47 Mo. 555; Fisher v. Drewett, 7 Rep. 350.

V. No exception was taken to the giving of the instruction to plaintiff complained of, nor is it assigned for error in defendant's brief.

OPINION

HALL J.

The defendant...