Gwinnup v. Sibert

• Decision Date: 25 April 1904
• Citation: 80 S.W. 589,106 Mo. App. 709
• Parties: GWINNUP v. SIBERT et al.
• Court: Missouri Court of Appeals

80 S.W. 589

106 Mo. App. 709

GWINNUP v. SIBERT et al.

Kansas City Court of Appeals. Missouri.

April 25, 1904.

STATUTE OF FRAUDS—AUTHORITY OF AGENTS— PRINCIPAL AND AGENT—RIGHT TO COMMISSIONS — PROCUREMENT OF PURCHASER — ACTIONS — VARIANCE — ESTOPPEL—JUSTICES OF THE PEACE—JUDGMENTS ON APPEAL.

1. Rev. St. 1899, § 3418, providing that no contract for the sale of lands by an agent shall be binding on the principal unless the agent is authorized in writing to make the contract, does not require the agent's authority to be in writing, in order to enable the agent to recover commissions from his principal for finding a purchaser ready and able to pay at the principal's terms.

2. Where an agent employed to sell real estate finds a purchaser who is both able and willing to purchase the property on the authorized terms, his right to commissions will not be impaired by a default of his principal in refusing to consummate the sale.

3. Where the owners of real estate agreed to sell to a purchaser procured by their agent, and the purchaser paid $10 of the price, the owners were estopped, when sued for commissions for making the sale, to assert that, because they subsequently refused to carry out their agreement, there was no sale, but that the agent's

services consisted in securing a purchaser able and willing to purchase.

4. Under Rev. St. 1899, § 4081, providing that, on appeal from justice's court, if the judgment be affirmed, or if, on trial anew, it be against appellant, such judgment shall be rendered against him and his securities, a judgment against defendant appellant, on appeal from a justice, for $200, and against the security on the appeal bond taken in justice's court for $75, the amount of the bond, was proper.

Appeal from Circuit Court, Linn County; Jno. P. Butler, Judge.

Action by F. M. Gwinnup against Mary A. Sibert and another. From a judgment for plaintiff, defendants appeal. Affirmed.

E. R. Stephens, for appellants. F. W. Powers and West & Bresnehan, for respondent.

BROADDUS, J.

The plaintiff sues for commission for sale of land. It is conceded that defendants verbally authorized plaintiff to sell certain land belonging to Mary A. Sibert, wife of defendant J. F. Sibert; that he procured a purchaser at defendants' price, who was able to and offered to pay for the land, but that defendants refused to consummate the transaction, and sold to another party. Defendants contend that plaintiff's contract was not in writing, and that the sale was not consummated. The statute of frauds (section 3418, Rev. St. 1899), upon which defendants rely, is as follows: "And no contract for the sale of lands made by an agent shall be binding upon the principal unless such agent is authorized in writing to make said contract."

This question is not a new one in this state. In Hurst v. Randall, 68 Mo. App. 507, the court held, in speaking of a sale made by the agent who had no written authority from his...