Goldsberry v. Thomas

• Decision Date: 06 April 1914
• Docket Number: No. 10,933.,10,933.
• Citation: 178 Mo. App. 334,165 S.W. 1179
• Parties: GOLDSBERRY et al. v. THOMAS.
• Court: Missouri Court of Appeals

165 S.W. 1179

178 Mo. A. 334

GOLDSBERRY et al. v. THOMAS.

No. 10,933.

Kansas City Court of Appeals. Missouri.

April 6, 1914.

1. BROKERS (§ 58) — RIGHT TO COMMISSIONS — AFFIRMANCE OF CONTRACT.

A real estate agent who procures a purchaser, ready, able, and willing to buy is entitled to his commissions whether the purchaser could be compelled to specifically preform or not, since the purchaser would at least be liable to the owner in damages.

2. BROKERS (§ 63) — RIGHT TO COMMISSION.

If a broker procured a purchaser, ready, able, and willing to perform, the owner would be liable for commissions though the sale was not made because the owner released the purchaser by making a settlement with him for damages because of his failure to purchase.

3. BROKERS (§ 75) — RIGHT TO COMMISSIONS — CONSTRUCTION OF AGREEMENT.

An agreement by a broker to take his client's note for his commission and wait for its payment until the client sold the farm received in exchange was merely an agreement to wait a reasonable time for the sale of the farm, and did not make his right to commissions depend upon its sale.

4. BROKERS (§ 75) — ESTOPPEL BY CONDUCT.

Where the owner, who gave his note to the broker for commissions for procuring an exchange of land upon an agreement that the broker should wait until the owner sold the farm received in exchange, released the other party from the agreement to exchange, he cannot claim, to prevent payment of commissions to the broker, that the time for paying the note had not expired.

5. BROKERS (§ 67) — RIGHT TO COMMISSIONS.

A broker would lose his right to commissions for procuring the sale of realty if he acted as agent for the other party, as well as his client, unless his client consented thereto.

6. BROKERS (§ 88) — ACTION FOR COMMISSIONS — JURY QUESTION.

In an action for commission for procuring a purchaser for land, whether defendant consented to plaintiff acting as agent for both parties held at most a jury question.

7. BROKERS (§ 88) — ACTION FOR COMMISSIONS — INSTRUCTIONS.

The instructions, in a broker's action for commissions for procuring an exchange of realty, should have submitted the question of the owner's consent to the broker acting as agent for both parties, where the evidence raised that question.

8. BROKERS (§ 67) — ACTIONS FOR COMMISSIONS — EVIDENCE.

In certain circumstances, an owner's knowledge that the broker, employed to procure a purchaser for land acted as agent for the other party as well as himself would be an element from which consent to his dual agency could be inferred.

Appeal from Circuit Court, Boone County; D. H. Harris, Judge.

Action by W. H. Goldsberry and others against J. R. Thomas. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

N. T. Gentry and McBaine & Clark, all of Columbia, for appellant. Harris & Finley, of Columbia, for respondents.

ELLISON, P. J.

Plaintiff's action was instituted to recover $1,000 claimed to be due them as real estate agents for bringing about a sale, or exchange, of defendant's land. They had judgment for the full sum in the circuit court. Defendant was the owner of a large farm consisting of 720 acres in Boone county which he desired to sell. To that end he procured a printed description of it which he placed in the hands of several real estate agents in Columbia. In this was a statement that he would allow a commission of 2½ per cent. One of these was left with plaintiff Goldsberry, who afterwards found a man named Davis living in Nodaway county, Mo., close to the Iowa line, who owned a farm of 400 acres in Iowa, which he proposed to trade for defendant's land. Plaintiff and defendant then agreed that for trade or exchange, instead of sale of the land, the commission should be $1,000. Defendant and plaintiff went to Iowa to look at the farm, but the trip resulted in a disagreement between defendant and Davis. Shortly afterwards Davis communicated to plaintiff Goldsberry that he had another Iowa farm, consisting of 165 acres, which he would put in in a trade for defendant's land. Defendant then went to Iowa to look over the land, and he and Davis came to an agreement (20th January, 1913) of exchange or purchase, the terms of which were reduced to writing and signed by each. Among these provisions is the following: "In order to show their good faith each party is to execute to the other his promissory note in the sum of $1,000 due on March first, 1913, a failure of either party (is) to render the note given by him due and payable and the amount of said note to be considered as damage for their failure to comply with this contract and value received clause in same to be legal and binding." The word "is" we have inserted in parenthesis as a clerical omission. Davis, afterwards failed and refused to carry out this contract, which resulted in a settlement between them at Maryville, Mo., evidenced by a written agreement dated the 28th of February, 1913, whereby for the payment by Davis to defendant of $1,750 the "controversy between the parties is hereby compromised and settled in full and said contract is annulled and canceled as to all its terms." Before starting to Maryville for this settlement, defendant and plaintiffs talked it over, when the latter agreed to and signed and delivered to defendant the following paper, which may be termed a modification of their first agreement, or a new agreement to meet the different conditions which might arise, or result from the conference between Davis and defendant, viz.: "Columbia, Mo. Feby. 24, 1913. Denham-Goldsberry Compromise in the Thomas-Moreland-Estates and Deal with Geo. Fred Davis. First Proposition: We, the undersigned agents, agree that if the said...