Gelatt v. Ridge

• Citation: 23 S.W. 882,117 Mo. 553
• Parties: GELATT v. RIDGE.
• Decision Date: 06 November 1893
• Court: United States State Supreme Court of Missouri

23 S.W. 882

117 Mo. 553

GELATT v. RIDGE.

Supreme Court of Missouri, Division No. 1.

November 6, 1893.

REAL-ESTATE AGENT — COMMISSIONS — PLEADING — OBJECTIONS WAIVED.

1. A real estate agent is entitled to his commissions when he procures a purchaser ready, able, and willing to buy on the terms authorized by the principal, and no binding, written contract of sale is required when the principal is in a situation to execute it himself.

2. The fact that the terms of sale made by an agent varied from the terms of his authority is immaterial where the principal ratified the sale as made.

3. A departure of a real-estate agent from the terms of his authority in effecting a sale becomes, on ratification by the principal, a part of the original contract of employment, and the compensation fixed therein controls.

4. In an action by a real-estate agent for commissions, a deed executed by the principal to the purchaser after the commencement of the suit is admissible to show the principal's ratification of the agent's contract.

5. When a real-estate agent has procured a purchaser able, ready, and willing to buy the land on the terms prescribed by the principal, the fact that such purchaser was acting in behalf of another does not affect the agent's right to commissions.

6. An objection to an amended petition as being a departure from the original is waived by pleading over and going to trial without raising the question.

Appeal from circuit court, Jackson county; John W. Henry, Judge.

Action by J. M. Gelatt against T. S. Ridge for commissions alleged to have been earned by plaintiff as agent in the sale of defendant's land. From a judgment in plaintiff's favor, defendant appeals. Affirmed.

The other facts fully appear in the following statement by MACFARLANE, J.:

The action is to recover commission by plaintiff, a real-estate agent, for the sale of land for defendant, under authority contained in the following writing: "Kansas City, Mo., March 14, 1889. I hereby authorize J. M. Gelatt to sell my property at 1116 Main, — 24 ft., 3 in., — for the sum of seventy thousand dollars; thirty thousand of which is to be paid in cash within thirty days of this date, ten thousand of which cash is to be paid within three days from date, and the remainder of my equity, twenty-three thousand dollars, to be paid in six months, with interest at the rate of six per cent. The purchaser of said premises is to pay an incumbrance of seventeen thousand dollars, bearing seven per cent. interest, which is now on said property, and falls due in January, 1890. Should Mr. Gelatt sell said property on the above terms, I am to give him fourteen hundred dollars, and any excess obtained for said property above said price to be his. Thomas S. Ridge. J. M. Gelatt." On the next day, March 15, 1889, plaintiff agreed with J. F. Brady for the purchase of the property upon the terms set forth in the following receipt, which was given at the time: "Received of J. F. Brady five hundred dollars, as earnest money in the purchase of Thomas S. Ridge's property, 1116 Main street, Kansas City, Missouri, at a price of seventy-three thousand dollars; ten thousand dollars of the same to be paid within two days from this date, of which five hundred has been paid, and twenty-five thousand dollars when deed is delivered, and twenty-one thousand six months from date of deed at six per cent., and assume seventeen thousand dollars due January, 1890, with seven per cent. interest from date of deed to said Brady. J. M. Gelatt, Authorized Agent for Thomas S. Ridge." The evidence tended to prove — indeed there is but little conflict on this point — that, immediately after agreeing upon the terms of sale and the execution of this receipt, the parties met defendant, the contract as made was submitted to and approved by him, and it was then arranged for a subsequent meeting, at which a written contract should be prepared and signed, and the balance of the cash payment made. At this first meeting it was disclosed that a tenant occupied a portion of the premises, but the evidence tends to prove that defendant agreed to arrange with him. At the subsequent meeting, held a day or two afterwards, defendant refused to carry out the contract, unless the purchaser would take the property subject to the lease, which he at the time declined to do. That Brady was able, ready, and willing to carry out the contract is unquestioned. After refusal of defendant to execute the contract as made the purchaser, John F. Brady, in the name of his brother, M. J. Brady, for whom the purchase was really made, commenced a suit for a specific performance of the contract. Pending this suit, and on June 27, 1889, Brady agreed to assume the lease, and a contract was made in the name of M. J. Brady, according to the terms of the original sale, with this exception as to the lease, and with the exception that the contract recited a consideration of $72,500, the $500 cash payment having been retained by plaintiff as part of his commission. The contract provided that defendant should allow Brady for the rents of the premises from April 14, 1889, and the note for the unpaid purchase money should bear date from March 14, 1889, the day of the original sale. The deed and deed of trust executed in pursuance of this contract were made to and by J. F. Brady, were dated June 28, 1889, and recited a consideration of $73,000. The suit was commenced March 23, 1889, and an amended petition filed in October of the same year. The amended petition charged the authority to sell, and agreement as to the commission as contained in the written contract, a sale on the terms contained in the receipt, a ratification of the sale upon those terms, and the final consummation of the sale by the execution of the deeds in June, 1889. The answer charged that defendant, before the alleged sale, informed plaintiff of the leasehold interest on the property held by another, and instructed him that any sale should be made subject to the lease, and that Brady, the purchaser, refused to take the property subject to the lease. The answer also charged collusion between plaintiff and the purchaser, by which the sale...