Glade v. Eastern Illinois Mining Co.

• Decision Date: 06 January 1908
• Parties: GLADE v. EASTERN ILLINOIS MINING CO.
• Court: Missouri Court of Appeals

107 S.W. 1002

129 Mo. App. 443

GLADE v. EASTERN ILLINOIS MINING CO.

Kansas City Court of Appeals. Missouri.

January 6, 1908.

Rehearing Denied February 17, 1908.

1. BROKERS — ACTION FOR COMMISSIONS — FINDINGS — EVIDENCE.

In an action for broker's commissions in the sale of a mining lease, evidence held to support a finding that plaintiff's customer and the person to whom the lease was conveyed procured the transfer in furtherance of a fraudulent purpose to deprive plaintiff of his commissions, and that plaintiff's principal, when making the transfer, had knowledge that the vendee was interested with the purchaser obtained by plaintiff in the purchase of the property.

2. APPEAL — FINDINGS OF FACT — ACTION AT LAW — EFFECT.

Where an action at law is tried to the court without a jury, findings of fact made by the trial judge will be treated as the verdict of a jury on appeal.

3. TRIAL — FINDINGS — DECLARATIONS OF LAW — CHANGE OF RULING.

Where the court trying a case without a jury inadvertently marked a declaration of law requested by defendant as "Given," instead of "Refused," as intended, the court had power during the pendency of a motion for a new trial to correct the error.

4. BROKERS — COMPENSATION — SALE — PROCURING CAUSE.

Plaintiff was given authority to sell a mining lease on specified terms. He interested A., a promoter, in the purchase, and A. combined with the purchaser and purchased the property for others. At the time of the sale plaintiff's authority had not been revoked. Held, that plaintiff was the procuring cause of the sale, and was entitled to commissions, though the seller did not know that A. and the purchaser were acting in conjunction, either for themselves or for others.

5. SAME — ABILITY OF PURCHASER.

Where a purchaser procured by a broker is accepted, and the contract executed and performed, the seller cannot defeat his broker's claim for commissions on the ground that the purchaser obtained was not himself able to buy and pay for the property.

6. SAME — PRICE — REDUCTION BY SELLER.

Where a broker's employment was limited to procuring a purchaser, the fact that the seller on its own motion made a sale for a less consideration than it authorized the broker to offer the property for did not deprive the broker of his right to commissions on the proceeds actually realized from the sale.

Appeal from Circuit Court, Jasper County; Howard Gray, Judge.

Action by George H. Glade against the Eastern Illinois Mining Company. Judgment for plaintiff, and defendant appeals. Affirmed.

McAntire & Scott, for appellant. McIndoe & Thurman, for respondent.

JOHNSON, J.

This suit was brought by plaintiff, a real estate agent, against his principal, to recover a commission alleged to have been earned in the sale of a mine in Jasper county. A jury was waived, findings of fact were filed, and judgment entered in favor of plaintiff, from which defendant appealed.

It is alleged in the petition that defendant, an Illinois corporation, was the owner of a mining lease and was engaged in operating a mine on the leased premises; that through its managing agents, Bruce Sims and Charles A. Sims, it employed plaintiff, in February, 1906, to "find or procure a purchaser or purchasers who would buy the property aforesaid" at the price of $35,000, and agreed to pay plaintiff a commission of 10 per cent. for the performance of such service; that plaintiff "procured a purchaser for said mine who was willing, ready, and able to buy the same for himself and associates," and introduced him to defendant's said managing agents, who "knew and were informed that the said purchaser and his associates were procured by the plaintiff, and that the said purchaser was willing, ready, and able to buy said property for himself and associates on the terms authorized by the defendant and submitted by the plaintiff to said prospective purchaser"; that defendant sold the mine to the purchaser thus procured by plaintiff for $31,500, and was paid the full amount of said purchase price, but "undertook to transfer said property indirectly to said purchaser through one J. E. Aldrich, and to have the purchase price paid indirectly from said customer to the said defendant; and that the transfer and the payment of the money was made indirectly as aforesaid." The prayer is for judgment in the sum of $3,150. The answer contains a general denial and a special defense, in which it is admitted that plaintiff was employed by Bruce and Charles Sims to sell the property but it is averred that at the time of the employment "Bruce Sims stated to him (plaintiff) that the property was for sale for $35,000, with a commission of 10 per cent. to the person who first sold it, with the distinct understanding that he (Sims) reserved the right to sell the property himself to any one that might apply to purchase the same." Further, it is alleged "that only Charles Sims and Bruce Sims were authorized to sell the property, and that it never gave to any other agents the power to sell the same." The answer ends with the allegation "that on the 8th day of March, 1906, it (defendant) sold the property under its reservation to J. E. Aldrich for $31,500." In the reply, plaintiff "denies that J. E. Aldrich ever paid any money of his own for or purchased said property," and alleges that "said Aldrich was used as a go-between by defendant and plaintiff's customer in the transfer of said property to said customer, and after plaintiff's customer had taken charge of and was in possession of said property, and that the money was furnished by plaintiff's customer to said Aldrich to pay the defendant therefor, * * * and that said Aldrich paid no money or consideration therefor, and the same was closed in said manner, with full knowledge of the defendant and its agents, with the intention of depriving plaintiff of his commissions, and was closed in an indirect manner for the purpose of evading payment thereof."

Special findings of facts made by the court are as follows: "That in February, 1906, the defendant was the owner of a mining lease * * * in Jasper county, Mo., and that on said date, by and through its agents, authorized the plaintiff to sell said property at the price of $35,000, and agreed, if plaintiff could sell said property or find a purchaser therefor, to pay to plaintiff a commission of 10 per cent. on said $35,000. * * * That said right to sell was not an exclusive right, but that the defendant expressly reserved the right to sell said property of its own accord, and also reserved the right to place said property in the hands of other agents. * * * That after the making of said agreement plaintiff interested one F. P. Allen in said property, and who was in the market to place mining property for other parties with whom he was associated. That the plaintiff and said Allen examined said mine and property, and after such examination the plaintiff was requested by said Allen to procure from the defendant the terms of payment of said sale, and thereupon the defendant authorized the sale upon the payment of $2,000 in cash and the balance in a time not exceeding 40 days. * * * That said Allen then tried to get the plaintiff to furnish a part of the $2,000 to make the first payment on said property, but that the plaintiff declined to do so, and thereupon the said Allen left the plaintiff with a view of getting some other person to assist him to furnish said money. * * * That said Allen interested one Jos. E. Aldrich, and got said Aldrich to furnish a part of said money for the purpose of buying said property; and while the defendant claimed that said Aldrich purchased said property from it prior to the time he negotiated with said Allen concerning the same, the court finds that at the trial the said Allen was not able to state where or with whom he made the contract for the purchase. That one of the said agents for the defendant, and who was authorized to sell the property for it, and with whom it is claimed the contract was made for the sale of the property to said Aldrich, testified that the sale was made at the mine on the 8th day of March, 1906, and that at said place the said Aldrich simply said he would take the property, and the deal was finally closed with his br...