Glade v. Eastern Illinois Mining Co.

• Decision Date: 02 March 1908
• Citation: 107 S.W. 1002,129 Mo.App. 443
• Parties: GEORGE H. GLADE, Respondent, v. EASTERN ILLINOIS MINING COMPANY, Appellant
• Court: Kansas Court of Appeals

107 S.W. 1002

129 Mo.App. 443

GEORGE H. GLADE, Respondent, v. EASTERN ILLINOIS MINING COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

March 2, 1908

January 6, 1908;

Appeal from Jasper Circuit Court.--Hon. Howard Gray, Judge.

AFFIRMED.

Judgment affirmed.

McAntire & Scott for appellant.

(1) Upon the special finding of facts as made by the court, the court should have sustained the defendant's demurrer to the evidence at the close of plaintiff's evidence, and also at the close of all the evidence, for the reason that the court by its special finding of facts, found, and the evidence so showed, that the plaintiff had not found a person before the defendant did who would take the mines and lease on the terms dictated by the defendant, that is, to pay to the defendants the sum of $ 31,500, or to pay to the plaintiff $ 35,000. Blackwell v. Adams, 28 Mo.App 61; Wyle v. Bank, 61 N.Y. 415; Frazier v Wycoff, 61 N.Y. 447; LaForce v. Washington University, 106 Mo.App. 517; Gambel v. Grether, 108 Mo.App. 340; Page et al. v. Griffin, 71 Mo.App 524; Crowle v. Somerville, 70 Mo.App. 376; Campbell v. Vanstone, 73 Mo.App. 84; Cox v. Bowling, 54 Mo.App. 289. (2) On the finding of facts we claim that under the law the plaintiff's demurrer should have been sustained and the court should have found for the defendant. LaForce v. Washington University, 106 Mo.App. 523; Sibbard v. Iron Co., 83 N.Y. 378; Stedman v. Richardson, 100 Ky. 79; Fairchild v. Cunningham, 84 Minn. 521. (3) The plaintiff failed to sell to Allen and by special finding the court says that the defendants refused to give him further time to "line Allen up." Even if defendant had sold to Allen afterward in good faith without design to avoid payment of commission, plaintiff could not have recovered. LaForce v. Washington University, 106 Mo.App. 523; Sibbard v. Iron Co., 83 N.Y. 378; Stedman v. Richardson, 100 Ky. 79; Fairchild v. Cunningham, 84 Minn. 521; Page v. Griffin, 71 Mo.App. 524. (4) The court erred in correcting his error as a jury committed in rendering a verdict against the defendant after he had marked "given" the finding of facts numbered 2, and when his attention was called to the inconsistency of the finding and the impossibility of a judgment being maintained with such special finding of facts, upon the motion for new trial, he certainly erred in then marking it "refused" after he had marked it "given." Because as a judge it was his duty to correct his errors or mistake as a jury only by sustaining the motion for new trial. Spalding v. Mabal, 27 Mo. 377; Cochran v. Moss, 10 Mo. 416; Ship v. Snyder, 121 Mo. 161. (5) If the finding of facts did not support the judgment the appellate court should and will reverse for error apparent upon the record. Bates v. Bower, 17 Mo. 556; Sutter v. Streit, 21 Mo. 157; Allison v. Dotten, 24 Mo. 343; Case v. Estenchied, 169 Mo. 220. (6) He fails to show by the evidence that he ever found a purchaser who was ready, able and willing to buy that property for that sum. Hence he failed to perform his contract and can not recover. Blackwell v. Adams, 28 Mo.App. 61; Warren v. Cram, 71 Mo.App. 641. (7) He was not even entitled to recover for reasonable value for his services because he failed to make a sale and defendants sold at the sum it reserved the right to sell for. Wylie v. Bank, 61 N.Y. 415.

McIndoe & Thurman for respondent.

(1) The defendant having consummated a sale with the purchaser of the plaintiff, the readiness or willingness of the purchaser to buy is not open to question. Plaintiff is entitled to his commission even though defendant conducted the final transfer personally or through another agent at a lower price. McCormick v. Henderson, 100 Mo.App. 649; Wright v. Brown, 68 Mo.App. 577; Stein v. Belsh, 42 Mo.App. 578; Bell v. Maiser, 50 Mo. 150; Tyler v. Parr, 52 Mo. 249; Gretcher v. McCormick, 79 Mo.App. 325; Timberman v. Crad-dock, 70 Mo. 638; Wetzell v. Wagoner, 41 Mo.App. 509; Brennon v. Roach, 79 Mo.App. 290; Henderson v. Mace, 64 Mo.App. 393; Milan v. Porter, 31 Mo.App. 563; Boss v. Jacobs, 63 Mo.App. 393; Crone v. Trust Co., 85 Mo.App. 601; Fisher v. Realty Co., 159 Mo. 562; Hogan v. Slade, 98 Mo.App. 44; Cunliff v. Horsman, 71 S.W. 368; Veach v. Noman, 95 Mo.App. 500; McCroy Son v. Pfost, 118 Mo.App. 672. (2) The plaintiff was the procuring cause of the negotiations which resulted in the sale. Where a sale is brought about directly through the exertions of the agent, he is the procuring cause. Wright v. Brown, 68 Mo.App. 583; Wetzell v. Wagoner, 41 Mo.App. 516; Tyler v. Parr, 52 Mo. 250; Crone v. Trust Co., 85 Mo.App. 601; McCormick v. Henderson, 100 Mo.App. 649. (3) It is immaterial whether the plaintiff disclosed the name of his purchaser to the defendant prior to the time the sale was closed. Millan v. Porter, 31 Mo.App. 563; Tyler v. Parr, 52 Mo. 250; Goffe v. Gibson, 18 Mo.App. 4. (4) Where the purchaser buys the property either through direct or indirect dealings with the principal, the agent is entitled to his commission. Wright v. Brown, supra; Stind v. Belsch, supra; Bell v. Kaiser, supra; Tyler v. Parr, supra; McCormick v. Henderson, supra; Gretcher v. McCormick, supra. (5) And where the sale is executed the question of the willingness, readiness and the ability of the purchaser to buy is not open to question. Wright v. Brown, 68 Mo.App. 583; Shipley v. Leatsche, 60 Mo.App. 20; Stind v. Belsch, 42 Mo.App. 579; Brennon v. Roach, 47 Mo.App. 290. (6) The questions as to whether the plaintiff was the procuring cause of the sale is for the jury. Crone v. Trust Co., 85 Mo.App. 607. (7) It is immaterial whether Allen was buying for himself or another. Gelatt v. Ridge, 117 Mo. 553. (8) Notwithstanding the fact that appellant sold at a smaller sum, or changed the terms, the respondent can recover. Nichols v. Whitacre, 112 Mo.App. 692; Gretcher v. McCormick, 79 Mo.App. 325; Laron v. Bogarth, 68 Mo.App. 407.

OPINION

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 ten 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," 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 anyone 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, Missouri, 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 that if plaintiff could sell said property or find a purchaser therefor, to pay to plaintiff a commission of ten per cent on said $ 35,000. . . . That said right to sell was not an exclusive right, but that the defendant...