Hovey v. Aaron

• Decision Date: 16 November 1908
• Citation: 133 Mo. App. 573,113 S.W. 718
• Parties: HOVEY et al. v. AARON.
• Court: Missouri Court of Appeals

113 S.W. 718

133 Mo. App. 573

HOVEY et al. v. AARON.

Kansas City Court of Appeals. Missouri.

November 16, 1908.

1. BROKERS (§ 48) — RIGHT TO COMMISSIONS — PROCURING PURCHASER.

A real estate broker, to be entitled to commissions for selling land, must have been employed by the owner to obtain a purchaser, and must have procured a purchaser ready, able, and willing to purchase on the terms upon which the broker was authorized to sell.

2. BROKERS (§ 55) — RIGHT TO COMMISSIONS — SALE BY OWNER THROUGH ANOTHER BROKER.

Where a broker has procured a purchaser for land, and while his agency is unrevoked and

he is still negotiating with the purchaser at the owner's stipulated price the owner sells to the same purchaser at a lower price through another broker, the original broker is nevertheless entitled to his commission.

3. BROKERS (§ 48) — RIGHT TO COMMISSIONS — DUTY TO DISCLOSE NAME OF PURCHASER TO OWNER.

A real estate broker, to entitle him to his commission, need not disclose the identity of a purchaser prior to the time of closing the sale.

4. APPEAL AND ERROR (§ 1031) — REVIEW — PRESUMPTIONS — PREJUDICIAL INSTRUCTIONS.

Where instructions, taken as a whole, present a false and highly prejudicial doctrine, it will be presumed on appeal that the jury was misled thereby.

Appeal from Circuit Court, Jackson County; J. H. Slover, Judge.

Action by P. H. Hovey and another, copartners, against Edward Aaron. Judgment for defendant, and, from an order granting a new trial, defendant appeals. Affirmed.

M. B. Aaron, for appellant. Meservey & German, for respondents.

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 10-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 2½ 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 10 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 10 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 10 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 tax bills 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 those 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 10 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 10-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 5 or 6 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 5 per cent. on the second incumbrance was talked of, and he said he would telephone him, and he telephoned me about 2 o'clock, and I think made an engagement for me to come down to the office at either 3 or half past 3 and close up the deal, and I came back. I don't think that I mentioned to him that day Hovey & Brown. I said: `Real estate agents within half a block of here.' He said: `In...