Gaty v. Sack
| Citation | 19 Mo.App. 470 |
| Parties | JOHN U. GATY, Respondent, v. G. H. SACK, Appellant. |
| Decision Date | 23 November 1885 |
| Court | Court of Appeals of Kansas |
APPEAL from Johnson Circuit Court, HON. NOAH M. GIVAN, Judge.
Affirmed.
The case and facts are stated in the opinion.
SAMUEL P. SPARKS, for the appellant.
I. There was no allegation in statement that plaintiff was a real estate agent, and the compensation is different in such case, and it was error to admit evidence of that fact. Erben v. Lorillard, 2 Key's 567; Dyer v Sutherland, 75 Ill. 585; 2 Sutherland on Damages, 451.
II. It was competent and material to show a secret agreement of agent with a third party that his (G.'s) interest in a farm should be kept secret, as tending to show that his own interest conflicted with his duties as defendant's agent. Story on Agency, section 210.
III. Plaintiff's instruction was erroneous (1) That jury should consider whether plaintiff was a land agent, since it was not averred. (2) To consider if by his advertisement and exertion he procured a purchaser for the land. There was no evidence of any advertisement. He must do more to entitle him to recover. Gaty v. Foster, 18 Mo.App. 639. (3) That he was the procuring cause of negotiations which resulted in sale; this phrase should have been defined. Earp v. Cummins, 54 Pa.St. 394. (4) It did not limit the amount of recovery, leaving the jury in the dark as to the measure. Crews v. Lackland, 67 Mo. 619.
IV. The court erred in refusing defendant's instructions, both as to variance and the uncertainty as to what contract was relied on. Also, as to the duties of an agent, all correctly defined by the instructions so refused. 1. M. Bk. v. Dickson, 62 Mo. 70; Bk. v. Armstrong Ibid, 69; Beale v. McKiernan, 6 Miller (La.) 407.
O. L HOUTS, for the respondent.
I. Plaintiff's instruction was correct. The failure to limit the amount of recovery does not vitiate, as the verdict was for less than the amount claimed. The fact is undisputed that plaintiff brought the parties together, and under the authorities cited, he is entitled to judgment no matter what instructions were given or refused. Tyler v. Parr, 52 Mo. 249; Bees v. Kaiser, 50 Mo. 150. The action was commenced before a justice of the peace, and the petition is good, especially after verdict. Tyler v. Parr, 52 Mo. 249; Bees v. Kaiser, supra.
II. Instructions refused to defendants were properly refused, because the instructions given embody the same principles, and cover the case. There was but one contract proven, and there was no variance.
III. It was not error to exclude evidence of plaintiffs' interest in another farm. The fact was uncontradicted and the evidence was immaterial at all events.
IV. The verdict of a jury cannot be impeached by the statement of a juror to a third party. The motion for a new trial was properly overruled. Stair v. Dunn, 80 Mo. 681; State v. Fox, 79 Mo. at p. 112, and cases cited. The court in overruling a motion for new trial found from the evidence that defendant failed to show misconduct on the part of the jury.
This action was begun before a justice of the peace, and tried on appeal, before a jury, in the circuit court. Plaintiff recovered judgment, from which defendant prosecutes this appeal.
The statement filed in the justice's court alleged in substance, that the defendant was the owner of certain lands in Johnson county, and that in the month of May, 1883, he employed plaintiff to sell said lands for him, and agreed to pay plaintiff to obtain a purchaser therefor a commission of three per cent. upon the selling price, and a further reasonable sum. That in the following month of August plaintiff obtained a purchaser for and sold said lands at the aggregate price of $4,000.00. Judgment is asked for the three per cent. commission, and the further sum of thirty dollars, as additional reasonable compensation.
It appeared from the plaintiff's evidence, that in the month of April, 1883, the defendant placed said lands in his hands, as a real estate broker or agent, to sell for him. The contract was to the effect set out in the statement, and run for ninety days next ensuing; that plaintiff failing to sell during that period, the defendant frequently thereafter talked to him as if desirous of continuing the contract, and that his agency did so continue; that in the month of August he was instrumental in bringing to defendant a purchaser, with whom defendant consummated a contract of sale at the price of $4,000. The defendant's evidence tended to show, that after the expiration of said three months the agency of plaintiff was at an end; but that on the day when the purchaser of this land was in plaintiff's office for the purpose of going with plaintiff to look at another farm, he met said purchaser there, and did consent to an arrangement with plaintiff to the effect that if he would on that day, but not on any other, take this purchaser to see defendant's farm, and effect a sale to him, he would pay him the commission; and that defendant promised to do so, as he was going out that way anyhow, and it would be but little out of his course to go by and show defendant's farm. But that the plaintiff, instead of showing defendant's farm to said purchaser on that day, neglected and failed, not only to take him to this farm, but made representations to the purchaser as to the title and quality, so as to positively discourage a sale; and that thereafter defendant took the matter in hand and effected the sale without the assistance or consent of plaintiff. There was other evidence bearing on the issues, for and against the claim of plaintiff.
I. The first error assigned by appellant is, that there was a variance between the statement of the case and the proof made at the trial, in this: the statement declares on a contract made in May, 1883, whereas the proof showed that that contract had expired by its own terms, and that recovery was sought on a new and substituted arrangement made in August, 1883. There is no merit in this objection. There is but one cause of action, and the same subject matter. The action having been brought in a justice's court, such strictness in pleading is not to be exacted. Metz v. Eddy, 21 Mo. 13.
Moreover, if the variance was material, the defendant has not brought himself within the rule to make the irregularity available to him. Turner v. R. R. Co., 51 Mo. 501.
II. It is also assigned for error that the court permitted the plaintiff to state in evidence that he was a real estate agent--it not being specifically alleged in the statement filed with the justice that he was such agent or broker, and that the contract was made with him as such. What is said above is equally applicable to this criticism. Defendant could not have been misled by the proof, as it is manifest from his own evidence that he knew the business of plaintiff was that of a real estate agent, and he dealt with him as such.
III. It appears from the record that at the time plaintiff claimed to be acting as agent for defendant he was secretly interested in a farm known as " " the Dyke farm." This was the farm he took the said purchaser out to see on the day defendant proposed that he go by to see his farm. Defendant complains that the court excluded evidence offered by him tending to show that the plaintiff concealed from him the fact of this secret interest. The contention of appellant is, that plaintiff's interest, thus concealed, conflicted with his duty as agent for the sale of defendant's land, and should be held to defeat plaintiff's action. In support of this position we are referred to Story on Agency, section 210, and other like authorities.
The rule invoked is " that in matters touching the agency agents cannot act so as to bind their principals where they have an adverse interest in themselves." This interest manifestly refers to the subject matter of the agency--the thing on which the agent undertakes to act and deal with for the principal. It has no application to the facts of this case. It cannot be so extended as to make it apply to the instance of a real estate agent having his own lands or any other lands for sale, so long as he does not permit his interest in other like transactions to interfere with his duty to his principal. Otherwise a real estate agent could only have on his list of lands for sale one farm at a time, or would not be allowed to sell his own lands,...
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