Hodges v. Ramsey

• Decision Date: 06 December 1919
• Docket Number: No. 2587.,2587.
• Parties: HODGES v. RAMSEY.
• Court: Missouri Court of Appeals

216 S.W. 568

HODGES v. RAMSEY.

No. 2587.

Springfield Court of Appeals. Missouri.

December 6, 1919.

Appeal from Circuit Court, Dent County; L. B. Woodside, Judge.

Suit by H. L. Hodges against J. D. Ramsey. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

McGee & Bennett, of Salem, for appellant. Wm. P. Elmer and G. C. Dalton, both of Salem, for respondent.

STURGIS, P. J.

This is a suit to collect a commission alleged to be due to plaintiff for procuring a purchaser for defendant's farm in Dent county, Mo. There is no question as to the commission contract or as to the land being sold to one Welsh, then living in the state of Illinois. The answer of J. D. Ramsey states as his only defense that he employed one Williams to sell this farm, and that Williams procured the purchaser, Welsh, and that he has paid the commission to Williams. The case largely turned on the question whether, after plaintiff's employment to sell the farm for a commission, such contract was by agreement canceled or terminated before the farm was sold to Welsh. This theory was presented by defendant's first instruction, and the jury doubtless found for defendant on that theory. This, we think, was an erroneous theory, and this instruction, under the facts presented, should not have been given.

Plaintiff is a real estate broker residing in Dent county, where the defendant lives and the farm in question is situated. The sale of this farm grew out of plaintiff's efforts to sell another farm in that county known as the Heller farm. " The purchaser, Welsh, was first attracted to Dent county by plaintiff's advertisement of the Heller farm. On inspecting that farm at plaintiff's instance, he agreed to buy it and put up a forfeit of $500 to bind the bargain. Williams, who might well be termed the villain in the play, resided in the same county in Illinois as the purchaser, Welsh, and was something of a real estate agent himself. Just how he got into the deal is left to conjecture, but some two weeks after Welsh had agreed to purchase the Heller farm, for which plaintiff would have received a commission, Williams came with Welsh to Dent county and looked over the Heller farm, and they returned to Illinois without closing that deal. Something more than a month later, Williams returned to Dent county alone. He at once gave it out that Welsh would not or could not take the Heller farm and would rather lose the $500 forfeit. While Williams was there, plaintiff received from Welsh a letter to this effect. Welsh, who testified for defendant, admitted with much reluctance that he knew Williams was going to Dent county at that time, and that they had talked of his not taking the Heller farm, though he would lose the $500 forfeit, and admitted that the real purpose of Williams coming at that time was to secure a reduced price on the Heller farm by threatening that Welsh would quit the deal. Williams offered to buy the Heller farm himself at a reduced price, $17,000, and offered to put up $1,000. Williams, however, was really acting for Welsh, as Welsh admitted in his evidence that there was an understanding between him and Welsh "that he (Williams) was to come down here and see if he could get the farm cheaper." Heller, however, refused to reduce the price, and that deal ended. On this same trip, Williams learned that defendant's fame was for sale by plaintiff as agent. Plaintiff took Williams to see this farm, and Williams, pretending that he wanted to buy for himself, made defendant an offer of $13,000 for the farm, which defendant agreed to accept. Williams, however, wanted two weeks within which to close the deal and was not willing to put up any forfeit or part payment on this farm. Plaintiff says he knew at this time that Williams was bargaining this (defendant's) farm for Welsh in place of the Heller farm, as Williams had wanted a commission to put through the Heller deal, and subsequent evidence proved this correct.

It is at this point that defendant claims that the agency contract of plaintiff was terminated, and this claim is based on the fact that, because Williams refused to make part payment or put up a forfeit, both plaintiff and defendant "declared the deal off." By this, however, these parties merely meant to decline to tie up defendant's land or to bind themselves to make a future deal when Williams refused to bind himself. They did not mean that if Williams returned within two weeks or at any time, and the land was still unsold, they would refuse to sell to him on the terms specified. Nor did defendant act on such theory, for when Williams did return in a few days and went to see defendant, he at once supposed he had come to take the farm and was willing to close the deal on the terms previously agreed upon. Defendant in his brief admits that, if Williams had then taken the land for himself, plaintiff by reason of having procured him as a purchaser would have earned his commission. Plaintiff's agency was not terminated,...