Herrick v. Woodson

• Decision Date: 04 April 1910
• Parties: HERRICK v. WOODSON.
• Court: Missouri Court of Appeals

127 S.W. 391

143 Mo. App. 258

HERRICK v. WOODSON.

Springfield Court of Appeals. Missouri.

April 4, 1910.

BROKERS (§ 63)—RIGHT TO COMMISSIONS— PROCURING PURCHASER.

A real estate agent procuring a purchaser ready, able, and willing to buy on the terms authorized by the owner is entitled to commissions, the owner thereafter refusing to sell, though it is because of the unwillingness of his wife to sign the deed.

Appeal from Circuit Court, Greene County; James T. Neville, Judge.

Action by Sam Herrick against J. A. Woodson. Judgment for defendant, and plaintiff appeals. Reversed and remanded for new trial.

Patterson & Patterson, for appellant. Silsby & Delaney, for respondent.

NIXON, P. J.

This suit was commenced before a justice of the peace in Greene county and went to the circuit court on appeal after judgment for defendant. The plaintiff, Sam Herrick, is engaged in the business of selling real estate for a commission. He and the defendant, J. A. Woodson, are citizens of the city of Springfield. Plaintiff seeks to recover of defendant a commission for having obtained a purchaser for defendant's property in pursuance of an agreement whereby plaintiff listed defendant's property and undertook to sell the same. After hearing the plaintiff's evidence the court sustained a demurrer to the same and instructed the jury that plaintiff was not entitled to recover, and a verdict was accordingly returned for the defendant. The case is here on appeal.

Plaintiff testified that defendant saw him in Hunter's grocery store, and, after asking how business was, said, "By the way, while you are showing people around, bring them over and show them my property." Plaintiff's testimony continues: "I said: `All right, Mr. Woodson. What is the matter with me listing it?' He said, `All right, sir.' I didn't ask Mr. Hunter for a tablet, as he was a stranger; but I just took out my little bank book and stepped up to the counter and listed it on my bank book here, the price and all, and the next morning I went down and entered it on my real estate book. The description reads: `J. A. Woodson, 945 West Walnut street. Six room, modern house; basement; alley to the back; south front; and attic all floored; piped for furnace; good barn; woodshed; lot 55 by 190, $4,000, cash.' He gave me those items or I wouldn't have known them. I didn't know anything about his place. Then I advertised the place; put in an ad and kept it there maybe a week or ten days, and then took it out and put in other property. Along about the 8th of May, Dr. Sherman saw me, and he was looking to buy a place. I introduced that property to him, and he said he would take his wife out and see it. They went out there, and Mrs. Woodson showed them through the house, and he then came back and said that he would have to make a little loan on the place to get it. So I took Mr. Smith of the Farmers' & Merchants' Bank in my buggy to examine the place. Mrs. Woodson was in the yard, and we sat there in the buggy. I asked Mr. Smith if he wanted to go through the house. He said he would loan $1,500 on it. Dr. Sherman had $2,500, and this would make the $4,000 in cash. I went back and told him, and he just wrote me out a check for $100 and drew up a contract and had me sign it to that effect. The next morning between 10 and 11 o'clock I went out to see Mrs. Woodson to see when we could get possession, and she said she wasn't going to let the place sell. She flew mad and was going to abuse me, and I told her I didn't come out there for any fuss. I told her to tell Mr. Woodson to call me up, and she said, `It won't do you any good.' So about the noon hour Mr. Woodson called me over the `phone and wanted me to come out. I said: `Mr. Woodson, I would rather you would come to my office. I was out there, and Mrs. Woodson was mad, and fussed at me, and I would rather you would come down here.' He said, `You come out, and we will try and fix it up with my wife so that it may be satisfactory.' So that evening I went by and had my son in the buggy. Mr. Woodson came out, and I said, `What are we going to do about this sale?' He said, `I don't know, Herrick, what we are going to do about it.' I said, `Well, we had better do something about it.' He said, `It is too bad it happened, but my wife says she is not going to sell it.' And by this time she came out and grabbed him by the arm and said for him to come to supper. I said: `I don't care about that. I have sold the place and have earned the commission, and I will just see what the court says about it.' And I left." Plaintiff further testified that he first found that the property was not for sale the day after he had sent Dr. Sherman out to look at it; that he had then entered into a written contract with Dr. Sherman and had received a check for $100 from Dr. Sherman.

William Schelfritz, a neighbor of defendant, testified: "Q. Now, you may state to the jury all you know about this business transaction between Mr. Herrick and Mr. Woodson. A. One morning—I couldn't say the date, I suppose it was the date the proposed sale took place—Mrs. Woodson came down to my place of business, and was very much excited, and she called up Mr. Woodson and told him that she didn't approve of the sale of this property, and further said to him: `Now, Mr. Woodson, I don't want you to talk that way. I want you to come home.' Mr. Woodson later called up Mr. Herrick and said to him, `Now, Mr. Herrick, I would like for you to come this evening and let us settle this matter in some way,' or, `Let us dispose of it in some way.'"

H. D. Hunter, the owner of the grocery store where the property was listed, corroborated Mr. Herrick as to what was said by the defendant in listing his property with the plaintiff.

H. M. Smith, the cashier of the Farmers' & Merchants' Bank, in regard to the loan, testified substantially the same as the plaintiff, saying that he knew the loan was for Dr. Sherman.

Ira Herrick, son of the plaintiff, who went with his father in the buggy to see the defendant, testified: "My father asked what he was going to do about the sale, and he said: `Well, Mr. Herrick, I don't know what I shall do about it. It seems like my wife don't want to sell it.' Father said: `Well, you know you listed...