Holman v. Fincher
| Decision Date | 10 May 1966 |
| Docket Number | No. 8510,8510 |
| Citation | 403 S.W.2d 245 |
| Parties | W. C. HOLMAN d/b/a Holman Realty, Plaintiff-Respondent, v. Dale FINCHER and Arlene Fincher, his wife, Defendants-Appellants. |
| Court | Missouri Court of Appeals |
Low & Honssinger, Lebanon, for defendants-appellants.
J. W. Grossenheider, Lebanon, for plaintiff-respondent.
In this jury-waived action at law to recover a broker's commission for sale of real estate, the court entered judgment for plaintiff W. C. Holman d/b/a Holman Realty and against defendants Dale Fincher and Arlene Fincher, in the principal sum of $2,000 with interest thereon from December 12, 1963. Defendants appeal.
About August 18, 1963, defendants listed their 287-acre farm for sale with two real estate brokers, to wit, with plaintiff under an oral listing agreement and with United Farm Agency (hereinafter called United) under a written listing agreement. Under the oral agreement with plaintiff, defendants were to receive the net sum of $45,000 and 'anything over that' would constitute plaintiff's commission. The written agreement with United provided, inter alia, that the sale price of the farm was to be $50,000 and that, in the event of sale to a purchaser 'procured through' United, a commission of te per cent or $5,000 would be paid, with defendants thus receiving the net sum of $45,000. Neither agreement was exclusive.
During September 1963, Mr. and Mrs. O. R. Chambliss, then living on a farm in Texas, made a trip of Missouri with a view to purchasing a farm and moving here. The Chamblisses were looking for a relatively large farm on which to run cattle. On that trip to Missouri, they were in Lebanon and vicinity for about five days, apparently from September 20 to 24, and at different times during that period were shown farms by United's salesman Anderson and by plaintiff's son, Edward Holman, a licensed salesman for his father. On September 23, United's Anderson showed defendants' farm to the Chamblisses and introduced the parties. As Anderson stated, 'they (the Chamblisses) liked the place but . . . wanted a larger farm.' The Chamblisses questioned Anderson as to whether additional acreage might be obtained by purchase of a designated adjoining farm, and United's representatives were to investigate that possibility and communicate with the Chamblisses. Witness Beasley, Anderson's superior in charge of United's Lebanon office, testified that after September 23 the owner of the adjoining farm 'was contacted and he did not wish to put the property up for sale at that time.' When asked whether that information was communicated to the Chamblisses, Beasley's uncertain answer was, 'I don't recall, I believe there was a letter written, I don't know . . . I would have to check.' Mrs. Chambliss stated that 'they never did . . .tell us about it.' As for price, United's Anderson said that defendants' farm had been quoted to the Chamblisses at $50,000, and United's Beasley thought that 'if it (price) had been discussed, which I am sure it was, it was quoted as $50,000.' On the other hand, the Chamblisses testified that United had priced the farm to them at $52,500.
The only time which the Chamblisses spent with United's representatives was a portion of Monday, September 23 (Chambliss said 'from 9:00 to 11:30 (A.M.), something like that,' while United's Anderson thought it was 'somewhat between 1:30 and 2:30 (P.M.) when I picked them up . . . and if I remember it was getting dark when I came back'), and defendants' farm was the only one shown by United. As Anderson said, 'I think we drove by one other property, but didn't get out and look at it because it was too small.' Upon trial, Chambliss indicated that he had not continued his search with Anderson because 'I didn't feel like that he tried to answer my questions or show me and, if I asked him things . . . it didn't seem like he tried.' In short, Chambliss thought that Anderson 'just wasn't very accommodating.'
Accordingly, the Chamblisses spent most of their time in the Lebanon area with plaintiff's son, who showed them one farm on September 20, three farms (including one south of Mr. Grove) on September 21, and 'several other places' (including the 638-acre Manson farm east of Lebanon and a 400-acre farm west of that city) on September 23. On the morning of September 24, the Chamblisses told plaintiff's son that 'there was no further need for looking at farms, that they were interested in one,' namely, the 638-acre Manson farm. Later that day they departed for their home in Texas, leaving the son with the task of undertaking to negotiate an acceptable purchase agreement for the Manson farm.
After returning to Texas, the Chamblisses, wrote plaintiff's son three times, to wit, on October 3 reiterating 'that the Manson farm was the first choice,' on October 8, and again on October 16, and they called him over long distance on October 18. The son, unsuccessfully 'trying to secure the Manson place' and 'also looking for other places . . . the type of places that he (Chambliss) liked,' replied to the letters and answered the inquiries. The only letter written by the Chamblisses to a United representative was one dated October 16 to United's Beasley, in which the Chamblisses commented that they liked defendants' farm 'but we think that it is just to high.' To the inquiry upon trial as to whether he had answered that letter, Beasley said 'I don't remember, these records are in (our attorney's) office.'
On December 7, 1963, Chambliss informed plaintiff's son over long distance that the Chamblisses were driving to Lebanon the following day; and, in response to the son's invitation, the Chamblisses came to his home on Sunday, December 8, and stayed overnight there. On December 9, plaintiff's son showed them a 500-acre farm west of Lebanon, an 1100-acre farm on the Gasconade River, and a farm east of Lebanon. On December 10, the Chamblisses submitted an offer on the Manson farm which was rejected. On December 11, they made an offer on the Woods farm and came 'within $500' of purchasing it. Failing in that, plaintiff's son 'persuaded them to go look at (defendants') place' again. That was the first time he had shown defendants' farm to them, although, as he frankly stated upon trial, the Chamblisses theretofore had told him that they had seen the farm with United's representative.
When United had shown defendants' farm, the Chamblisses had voiced two serious objections, namely, (1) that the farm was too small for the herd of cattle they wanted to run on it and (2) that the price quoted by United was too high, by reason of which (so they insisted) United had not interested them in purchasing the farm. The evidence was that plaintiff's son induced the Chamblisses to purchase the farm by meeting and overcoming both of those objections. As for the size of the farm, he did 'some figuring' with them and finally convinced them that 'even though it (defendants' farm) was a smaller farm that the amount of pasture would handle more cattle than some of the larger ones'--that it 'would produce as much as a much larger farm, due to the condition of the land.' As for the price, plaintiff's son quoted the farm at $47,000, a substantially lower figure than that of $52,500 at which (so the Chamblisses testified) United had quoted it.
On December 12 plaintiff's son induced the Chamblisses to authorize him to make, on their behalf, an offer of $47,000 for defendants' farm and to deposit with him an earnest money check of $1,000, and on the same date defendants accepted that offer, all as manifested by a written 'Offer and Acceptance' signed by O. R. Chambliss for the purchasers and by Dale Fincher for the owners, which upon trial was received in evidence without objection. In the 'Acceptance' section of this exhibit, it was stated, over the signature of defendant Dale Fincher, that 'the above offer is hereby accepted' and that 'we agree to pay agent's commission of $2,000.' (Emphasis ours) The sale was consummated shortly thereafter by defendants' conveyance of title and delivery of possession to the Chamblisses.
Before the sale was closed, United's representatives learned of the deal by 'hearsay on the street' and contacted defendants. With both instant plaintiff and United claiming commissions, the situation eventually spawned three suits. In the first instituted in the Circuit Court of Laclede County by United against the Finchers (also defendants in the instant suit) on March 27, 1964, and docketed as No. 5285, United sought a commission of $4,700 under its written listing agreement. In the second instituted in the same circuit court by the Finchers against United and both of the Holmans (plaintiff in the instant suit and his son) on April 6, 1964, and docketed as No. 5290, the Finchers sought a declaratory judgment as to the rights and duties of the parties under the written listing agreement with United and the oral listing agreement with Holman and as to 'which . . . under the correct construction of the aforesaid contracts' was entitled to a commission. The third was this case instituted in the same circuit court on September 24, 1964, and docketed as No. 5441, in which plaintiff Holman sought a commission of $2,000 under the oral listing agreement with him.
Prior to institution of this case, No. 5441, the Finchers unsuccessfully sought to consolidate Nos. 5285 and 5290; and, before trial of this case, they unsuccessfully moved to add United as an additional party defendant herein. During trial of the instant case, the original files in Nos. 5285 and 5290 () were received in evidence as defendants' exhibits; and, on this appeal, those original files are brought to our attention in connection with defendants' lamentation that they 'have fallen amongst the Philistines' and that, if the judgment for instant plaintiff be permitted to stand, defendants 'could eventually be...
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