Hovey & Brown v. Aaron

• Decision Date: 16 November 1908
• Citation: 113 S.W. 718,133 Mo.App. 573
• Parties: HOVEY & BROWN, Respondents, v. EDWARD AARON, Appellant
• Court: Kansas Court of Appeals

113 S.W. 718

133 Mo.App. 573

HOVEY & BROWN, Respondents, v. EDWARD AARON, Appellant

Court of Appeals of Missouri, Kansas City

November 16, 1908

Appeal from Jackson Circuit Court.--Hon. James H. Slover, Judge.

Judgment affirmed.

M. B Aaron for appellant.

(1) The defendant's instructions 6, 7, 8, and 9, are correct. Wolf v. Rosenberg, 67 Mo.App. 403; Crowley v Summerville, 70 Mo.App. 376; Heydon v. Grillo, 26 Mo.App. 289; Heydon v. Grillo, 35 Mo.App. 650; Ramsey v. West, 31 Mo.App. 676; Stinde v Scharf, 36 Mo.App. 15; McGuire v. Carlson, 61 Ill.App. 395; Blodgett v. Sioux, 63 Ia. 606; Mears v. Stone, 44 Ill.App. 444; Francis v. Eddy, 49 Minn. 447; Blackwell v. Adams, 28 Mo.App. 61; Zeidler v. Walker, 41 Mo.App. 121; Harkness v. Briscoe, 47 Mo.App. 196; Campbell v. Van Stone, 73 Mo.App. 84; Whitcomb v. Bacon, 170 Mass. 479; Sibald v. Bethlehem, 83 N.Y. 378; Ward v. Fletcher, 124 Mass. 224; Glasscock v. Van Fleet, 100 Tenn. 603; Seivers v. Griffin, 14 Ill.App. 63; Tinges v. Moale, 25 Md. 480; Harwood v. Triplett, 34 Mo.App. 237; Carlson v. Nathan, 43 Ill.App. 364; Livezy v. Miller, 61 Md. 336; Crowinshield v. Foster, 169 Mass. 237; Freedman v. Havenejer, 37 A.D. 518; Feldman v. O'Brien, 23 Misc. (N. Y.) 341; Cathcart v. Bacon, 47 Minn. 34; Getzler v. Boehm, 16 Misc. (N. Y.) 390; Mittingly v. Pennie, 105 Cal. 514; Flynn v. Jordal, 124 Ia. 459; Higgins v. Herme, 74 Mo.App. 86; Lawrence v. Weir, 3 Colo.App. 401; Baars v. Hyland, 65 Minn. 150; Walton v. McMarrow, 175 N.Y. 493; Glenn v. Davidson, 37 Md. 365; Stewart v. Woodard, 7 Kan.App. 633; Scott v. Loyd, 19 Colo. 401; Bowser v. Mick, 29 Ind.App. 49; Stauffer v. Bell, 99 Ia. 545; Stinde v. Blesch, 42 Mo.App. 587; Higgins v. Miller, 109 Ky. 209; Goin v. Hess, 102 Ia. 140. (2) The instructions in question are not objectionable on account of ignoring the principle of procuring cause, because taken with the other instructions and construing them as a whole, that issue was fully and fairly presented to the jury. Blake v. Stump, 73 Md. 160; French v. McKay, 181 Mass. 485; Walton v. Cheesebrough, 167 N.Y. 606; Bickart v. Hoffmann, 19 N.Y.S. 472; Dougherty v. Railroad, 97 Mo. 647; Gordon v. Burris, 153 Mo. 223; Muelhausem v. Railroad, 91 Mo. 332; Fisher v. Heizberg Co., 77 Mo.App. 108; Swann v. Leellman, 12 Mo.App. 583; Owens v. Railroad, 95 Mo. 169; Deweese v. Iron Co., 54 Mo.App. 476; Bank v. Hatch, 98 Mo. 376; Holliday Klotz L. & L. Co. v. Tie Co., 87 Mo.App. 167; Perrett v. Kansas City, 162 Mo. 238. (3) The verdict is for the right party and should not have been disturbed by the trial court. State ex rel. v. Benedict, 51 Mo.App. 642; Randle v. Railroad, 65 Mo. 325; Daniel v. Atkins, 66 Mo.App. 342; Muldrow v. Railroad, 62 Mo.App. 431; Fidelity & Dep. Co. v. Coldin, 83 Mo.App. 204; Bowman v. Lickey, 86 Mo.App. 47; Wagner v. Edison El. & Ill. Co., 82 Mo.App. 287.

Meservey & German for respondents.

(1) Instructions numbered 6, 7, 8, and 9, given to the jury on the part of the defendant, were each erroneous in that they eliminated from the consideration of the jury the question as to whether or not plaintiffs were the procuring cause of Braley's purchasing the property from the defendant. (2) Each of these instructions contain vital error. They are not the law. Crone v. Trust Co., 85 Mo.App. 601; Tyler v. Parr, 52 Mo. 250; Wright v. Brown, 68 Mo.App. 577; Goffe v. Gibson, 18 Mo.App. 4; Stinde v. Blesch, 42 Mo.App. 578; Grether v. McCormick, 79 Mo.App. 325; Cunliff v. Hansman, 97 Mo.App. 467; Brennan v. Roach, 47 Mo.App. 290; Hogan v. Slade, 98 Mo.App. 50; Sallee v. McMurray, 113 Mo.App. 253; Glade v. Mining Co., 107 S.W. 1002.

OPINION

JOHNSON, J.

Plaintiffs, who are partners in the business of real estate agents, brought this suit to recover a commission alleged to be due them from defendant. The verdict of the jury was for defendant, but the court sustained the motion for a new trial filed by plaintiff "because of error committed by the court in giving to the jury defendant's instructions numbered 6, 7, 8 and 9," and defendant appealed.

Material facts appearing in the evidence introduced by plaintiff are as follows: In January, 1905, plaintiff, Hovey, learning that defendant had just purchased a ten-acre tract of land on the Belt Railway near Kansas City, interviewed defendant for the purpose of obtaining employment to sell the property as defendant's agent. He testified: "I asked him if he bought the property--he said that he had. I asked him if he wanted to sell it--he said yes, if he could make a profit on it he would be very glad to sell it. I asked him what he thought would be a fair price on it--what price he would put on it--he said he would take $ 30,000 for it. I then told him we were operating in that particular neighborhood and I would be glad to handle it for him. He said if I could sell it for $ 30,000 to go ahead and sell it--and we talked about different things there that I don't remember in detail, but finally Mr. Aaron asked me in case I sold the property, what my commission would be for selling it. I told him the usual commission of two and a half per cent. Well, that was about the end of the conversation at that time, as near as I can remember. . . . He said that he owed, as near as I can remember, $ 16,000, on the property, and that he would like to get his equity out in cash. . . . And then I told him I would like to know, if he couldn't get that cash payment if he would take less. He said he thought it was good security and if I could get as much as $ 8,000 cash, he would take the balance of it back on the property in the shape of a second mortgage. Q. That would be $ 6,000? A. Yes, sir."

Thus employed, plaintiffs exerted themselves to find a purchaser. They had negotiations with several persons who appeared able to buy on the terms proposed, introduced one of them to defendant as a prospective buyer, and disclosed the name of another in the course of an attempt to induce defendant to reduce the cash payment from $ 8,000 to $ 5,000. Finally, plaintiffs began negotiations with Mr. Braley, a lawyer in Kansas City, and succeeded in interesting him in the property. We state what occurred between plaintiffs and Braley in the language of Mr. Hovey:

"He (Braley) said, 'Mr. Hovey, Mr. Brown was telling me about two weeks ago of a piece of property on the Belt Line Railroad of about ten acres that you had for sale for $ 30,000--I would like to know something about it.' I went on and described it to him, and he asked me about the price--he asked me if $ 30,000 was the low dollar--I said yes, that is the low dollar that will buy it. He said he would like to go out and see it. I said very well, when will you go? He said, I will go out with you this afternoon. . . . There was about eight inches of snow on the ground, and Mr. Braley and I walked up to this place, we walked down in the ten acres and walked into the ravine with the snow up to our knees--we were two hours out there in the snow. When we got home--we both lived on the same street--just opposite each other--I asked Mr. Braley what he thought of the ten acres. He said he would think the matter over and would let me know Monday.

Q. "Now, Mr. Hovey, right there, while you were out there with Mr. Braley, did you see C. D. Parker's sign on the ground? A. Yes, sir, and Mr. Braley said, 'I see that C. D. Parker & Co. have this for sale.'

"Q. It is frequently the case that several real estate firms have the same property for sale? A. Very frequently. Then Mr. Braley asked me what the taxes on this piece of property were. I told him I didn't know. Then he asked me about these sewers that he saw--he saw a sewer up on the right of way--he said 'do you know whether these sewer taxes are all paid or not?' I told him I didn't know. He said on Monday I will go down to the city hall and make some investigation as to what city taxbills there are out there and I will let you know. Nothing more was said until Monday morning. I called up Mr. Braley at his residence and asked him if he had made any decision about this. He said no, I am going to look up these taxes all right. Nothing more was said about it until Tuesday morning, I called Mr. Braley up over the telephone at his residence and asked him if he had decided about the Belt Line ten acres. Mr. Braley said, 'I bought it yesterday.'"

It appears from Braley's testimony that when he returned from inspecting the property with Hovey, he intended to buy it on the terms offered if he could not get a better offer. He went to the city hall, obtained the desired information relative to the taxes and then started for plaintiff's office to close the transaction. On his way there, he remembered seeing the sign of C. D. Parker & Co. on the property and it occurred to him that Parker & Co. might be able to offer him a better price than plaintiffs had given him. Braley testified:

"I went to Mr. Parker and asked him what his price was on that ten-acre tract out there. I won't be positive whether he told me $ 30,000 at first or not, but I know very soon he said 'I can sell it for $ 29,000, and I told him that a firm of real estate agents had shown me the property and they were neighbors of mine and friends and I disliked very much to trade through anybody else, but that they had said $ 30,000 was the least that would buy the property, but, I said, if that was so, and he could sell the property cheaper, I saw no reason why I shouldn't deal through him. And he said he could make it $ 29,000 and $ 6,000 cash. The question as to the second incumbrance and the interest on it was something that he couldn't decide--whether it would be five or six per cent--that he would see the owner. At that time he didn't tell me who the owner was, but the question whether the owner would take five per cent on...