Holden v. Lyons

• Decision Date: 03 June 1913
• Citation: 157 S.W. 811
• Parties: HOLDEN v. LYONS.
• Court: Missouri Court of Appeals

157 S.W. 811

HOLDEN v. LYONS.

St. Louis Court of Appeals. Missouri.

June 3, 1913.

Rehearing Denied June 17, 1913.

1. BROKERS (§ 63) — COMMISSIONS — WHEN EARNED.

Where a broker employed to procure a purchaser of real estate found a purchaser ready, able, and willing to purchase on the terms agreed on, but the owner then refused to consummate the sale, and the purchaser refused to proceed, though the owner in a few hours offered to proceed, the broker had performed his contract and could recover his commission.

2. CONTRACTS (§ 303) — PERFORMANCE — BREACH.

Where one party to a contract interferes with or prevents its performance by the adverse party to an extent amounting to a refusal of performance, the adverse party may recover as if he had fully performed.

3. CONTRACTS (§ 303) — PERFORMANCE — BREACH.

The refusal of a party to a contract to perform his part thereof releases the other party from further performance or a tender of performance and fixes his right of recovery at the time of the refusal.

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

Action by Clara B. Holden against Myrtle H. Lyons. From a judgment for defendant, plaintiff appeals. Reversed and remanded, with directions.

John J. O'Connor, of St. Louis, for appellant. Stevens & Stevens, of Clayton, for respondent.

NORTONI, J.

This is a suit for commissions accrued on account of the sale of real estate by an agent. A jury being waived, the case was tried before the court. No instructions or declarations of law appear to have been given or refused, and the finding and judgment were for defendant. Plaintiff prosecutes the appeal.

Both plaintiff and defendant are ladies, and it appears they were formerly neighbors in St. Louis county. Defendant had removed to Texas. She owned a lot of ground in St. Louis county adjacent to plaintiff's home and desired to sell it. Defendant wrote plaintiff that if she would find a purchaser and negotiate a sale of the property in question for her at the price at $4,225, under an arrangement whereby the purchaser would assume the payment of the current taxes for the year, she would pay plaintiff as commission therefor an amount equivalent to the difference between $4,225 and the price at which she might sell the property. Plaintiff undertook to make the sale, and, acting upon this letter of employment, induced one McFadden to purchase the property. She took McFadden to the property and induced him to agree to purchase it at $4,400 and to pay the taxes. This was on July 2d. On July 3d, defendant came to her former home in St. Louis county on account of the illness of her mother, and plaintiff informed her that McFadden had agreed to take the place at $4,400 and pay the taxes. McFadden paid plaintiff $25 earnest money on the purchase the day before, on July 2d. Defendant, thereupon being informed that McFadden was willing to take the property, agreed to the terms proposed and together with plaintiff met McFadden to close the deal on July 5th. On that day plaintiff, defendant, and the purchaser, McFadden, all met in the office of a lawyer in St. Louis, and defendant exhibited her deed to the property. This deed revealed a defect, however, in its execution, and defendant caused the same to be corrected during the day whereupon her deed was placed of record the second time. The title having thus been corrected, plaintiff, defendant, and McFadden met a second time on the following day, July 6th, at the office of the attorney, where the matter was almost but not quite consummated by defendant executing a deed to Mr. McFadden, the purchaser, in consideration of $4,400. This deed was not delivered on that day for the reason defendant's husband was not present to sign it. He resided in Texas, and defendant mailed the deed to him for his signature and acknowledgment. The deed was to be delivered immediately upon its return within a few days. On the morning of July 12th defendant called upon McFadden and plaintiff and informed each that she could not consummate the deal for the reason her husband declined to sign the deed. During this conversation defendant stated that if plaintiff would forego $70 of her commission or permit the payment of that amount out of the commissions to one Pindall, a cousin of defendant, then she would conclude the sale by conveying the title to McFadden. The evidence is that defendant said: "`If Mrs. Holden will pay Pindall $70 of her commission, the deal will be closed.' And Mrs. Holden said, `Not a cent;' and Mrs. Lyons said, `Then the deal can't go through.'" Thereupon defendant repudiated the entire transaction and refused to close the matter.

It appears that McFadden, the purchaser, had the money on hand at the time, for he was ready, able, and willing to close by taking the title from defendant and paying the price therefor. Indeed, he says he was anxious to close the bargain and insisted upon it, and no one denies this to be true. After defendant so abruptly broke off negotiations and refused to further proceed therewith, she "got right up and went right out and did not return." This occurred in the morning of July 12th, and it appears defendant consulted with a lawyer some time thereafter during the day. That evening about 7 o'clock defendant sent a note to McFadden, the purchaser, to the effect that she had reconsidered the matter and was ready to convey the property to him, but McFadden paid no heed to this. A few days...