Hayden v. Grillo

• Decision Date: 17 May 1887
• Citation: 26 Mo.App. 289
• Parties: DAVID J. HAYDEN ET AL., Respondents, v. ANTONIO GRILLO, Appellant.
• Court: Missouri Court of Appeals

26 Mo.App. 289

DAVID J. HAYDEN ET AL., Respondents, v. ANTONIO GRILLO, Appellant.

Court of Appeals of Missouri, St. Louis.

May 17, 1887

APPEAL from the St. Louis Circuit Court, AMOS M. THAYER, Judge.

Reversed and remanded.

EDMOND A. B. GARESCHÉ , for the appellant: The court erred in overruling the defendant's motion to make the plaintiffs' petition more definite and certain, and in subsequently overruling the defendant's objection to the introduction of any evidence under the petition. Iselin v. Griffith, 62 Iowa 670; Coleman's Ex'r v Mead, 13 Ky. 363; McGavock v. Woodlief, 20 How 221; Kimberly v. Henderson, 29 Md. 515; Phelan v. Gardner, 43 Cal. 311.

FREDERICK A. WIND, for the respondents: A broker employed to make a sale under an agreement for a commission, is entitled to pay when he makes the sale according to instructions and in good faith, and the principal can not relieve himself from liability by a refusal to consummate the sale. Bailey v Chapman, 41 Mo. 537; Carpenter v. Reinders, 52 Mo. 276; Kock v. Emmerling, 22 How. [63 U. S.] 69; McGavock v. Woodlief, 20 How. [61 U. S.] 221; Hart v. Hoffmann, 44 How. Pr. 168; Hayne v. O'Connor, 41 How. Pr. 287. In the absence of proof solvency is presumed. Hart v. Hoffmann, 44 How. Pr. 168; Cook v. Kroernke, 4 Daly 268. Where the owner refuses to consummate a sale it is entirely immaterial that the proposed purchaser was not bound by a contract in writing, unless that was the ground of the refusal. Kock v. Emmerling, 22 How. [U. S.] 69; Phelan v. Gardner, 43 Cal. 311; Bailey v. Chapman, 41 Mo. 537. Nor can the owner defeat the broker's demand for commissions on the ground of insolvency of the proposed buyer, at least, unless he rejected the buyer for that reason. Coleman's Ex'r v. Mead, 13 Ky. 363.

OPINION

THOMPSON J.

This is an action by a firm of real estate brokers for commissions, claimed to have been earned in making a sale of a piece of property belonging to the defendant, at his instance and request. The petition, after describing the parties, the ownership of the property, and the property itself, recites that, on a date named, " the said defendant employed the plaintiffs, said real estate brokers, to sell said property for him, for the sum of fifteen thousand dollars cash, and agreed with the said plaintiffs to pay them the customary commission of two and one-half per cent. on amount of sale; that two and one-half per cent. is the usual and customary commission in such cases; that, afterwards, to-wit, on the _____ day of _____, 1886, the said plaintiffs sold said property for the said sum of fifteen thousand dollars, cash, and received one hundred dollars, cash, as earnest money to bind the bargain, for which sum the plaintiffs gave, as agents for the defendant, a receipt and contract in writing; that, thereupon, the plaintiffs went to the defendant and informed him of the sale, and requested him to execute a deed for the same, which the defendant refused to do, and, upon request then made on him, refused and failed to pay the plaintiffs their said commission, as agreed, and still doth refuse so to pay them. Wherefore the plaintiffs ask judgment," etc. The answer is a general denial.

At the trial the plaintiffs gave evidence tending to show that the defendant authorized one of the plaintiffs, by parol, to sell the property for fifteen thousand dollars, in cash, and that, subsequently to the offer, and before it was withdrawn, the plaintiffs procured a purchaser for the property, who paid to them, as the defendant's agents, one hundred dollars, as earnest money, and took their receipt therefor, specifying the purpose for which the money was paid; that one of the plaintiffs, thereupon, tendered this earnest money to the defendant and requested him to perform the contract of sale thus brought about by the plaintiffs, which the defendant declined to do, on the ground that he was not satisfied with the price of fifteen thousand dollars.

The defendant, on the contrary, gave evidence to the effect that he had never authorized the plaintiffs to procure him a purchaser for the property. He admitted, however, that one of the plaintiffs had come to him and stated that he had procured a purchaser, and had tendered him one hundred dollars earnest money, with a written receipt for his signature, which money he had declined to receive, on the ground that the property was then worth more than fifteen thousand dollars. The period of time which elapsed between the time when, according to the petition, the plaintiffs were authorized by the defendant to sell the property for him, and the time when, according to the evidence, they tendered the one hundred dollars of earnest money to him and demanded the consummation of the sale, on his part, was about seven and a half months.

I. Before the trial the defendant moved the court to require the plaintiffs to make their petition more definite and certain, by disclosing (among other things) the name of the person to whom they had sold the property, as alleged. The court overruled this motion, and the defendant took an exception at the time. We take the view that the exception thus saved was afterwards lost by failing to renew it on the motion for a new trial.

II. But the question which the motion sought to reach arises on the motion in arrest of judgment, which challenges the petition as stating no cause of action. The ground of this exception is, that the petition fails to allege that the plaintiffs produced a purchaser for the property who was both ready and able to comply with the contract of purchase, which the defendant had authorized the plaintiffs to make for him. Upon this question the defendant's position, substantially, is, that the burden of proof is on the plaintiffs to show that they produced such a purchaser. On the contrary, the plaintiffs' position is, that, in the absence of evidence to the contrary, it is to be presumed that the person who agreed with the plaintiffs to purchase the property and who paid to the plaintiffs the one hundred dollars of earnest money was ready and able to perform his contract of purchase, or to respond in damages for failing so to do. They argue, moreover, that, as the defendant did not inquire of the plaintiffs, when the earnest money was tendered, who the purchaser was, or make any objection to the purchaser, but placed his refusal to comply with his agreement on the ground of the insufficiency of the price, merely, he is precluded from changing ground and setting up any other reason for his refusal to comply with his agreement.

The general rule, unquestionably, is, that, before a real estate broker can recover his commissions, he must show not merely that he produced one who offered to purchase the property on the terms agreed upon with his principal, but that he produced one who was both ready and able to purchase it upon such terms. Nothing short of this is a compliance with his undertaking. McGavock v. Woodlief, 20 How. (U. S.) 221, 227; Coleman v. Meade, 13 Bush 358, 363; Kimberly v. Henderson, 29 Md. 512, 515; Kenner v. Harrod, 2 Md. 63; Iselin v. Griffith, 62 Ia. 668, 670. This doctrine is not impaired by Kock v. Emerling (22 How. [U. S.] 69), but is there recognized, as it is, also, in Phelan v. Gardner (43 Cal. 306, 311); Nesbitt v. Helser (49 Mo. 383, 385).

This being the nature of the broker's undertaking, in order to recover of his principal for a breach of the contract, he must, on the clearest grounds, allege and...