Howard & Brown Realty Co. v. Barnett

• Decision Date: 25 November 1918
• Docket Number: No. 2290.,2290.
• Court: Missouri Court of Appeals
• Parties: HOWARD & BROWN REALTY CO. v. BARNETT.

206 S.W. 417

HOWARD & BROWN REALTY CO. v. BARNETT.

No. 2290.

Springfield Court of Appeals. Missouri.

November 25, 1918.

Appeal from Circuit Court, Jasper County; Joseph D. Perkins, Judge.

Suit by the Howard & Brown Realty Company against G. A. Barnett to collect a broker's commission. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

H. S. Miller, of Joplin, for appellant. George J. Grayston, of Joplin, for respondent.

STURGIS, P. J.

Plaintiff, a real estate agency, sues to collect a commission alleged to be due it on a sale of defendant's real estate in Joplin, Mo. This property is a high-class residence, and defendant, being desirous of selling same, made a contract with plaintiff, dated March 17, 1918, which, after describing the property and designating "price $12,500, remarks $12,000 net," is as follows (italics ours):

"For and in consideration of the advertising of the above-described property by the Howard & Brown Realty Company, a corporation, or an effort on its part, by and through its officers or employés, to sell the same, I hereby give and grant unto the said Howard & Brown Realty Company, the exclusive right to sell said abovedescribed property for the price and upon the terms above set out, and said Howard & Brown Realty Company is hereby authorized to accept a deposit to be applied upon the purchase price and to execute a binding contract for sale on my behalf.

"In event of any sale of above-described property, I agree to make the purchaser a good and sufficient warranty deed to the same, and to furnish a complete abstract of title thereto, and to pay to said Howard & Brown Realty Company, for its services, a commission of five hundred ($500.00) dollars, on said above-mentioned price, or on such other price, terms or conditions as I may accept.

"I reserve the right to terminate this contract at any time on thirty days' notice in writing. It is further agreed that, if no sale be made, I am to be at no expense whatever.

"Signed at Joplin, Missouri, this 17th day of March, 1917. G. A. Barnett, Owner of abovedescribed property."

The defendant admits the making of this contract and that the property was sold to one A. W. Canada about August 1, 1917, but with reference to such sale the answer alleges:

"That the plaintiff did not exercise diligence in seeking a purchaser for said property and did not make reasonable efforts to procure a purchaser for said property, and that, after plaintiff had had a reasonable time in which to procure a purchaser for said property, the defendant employed Charles W. Edwards to procure a purchaser for the same, and that the said Charles W. Edwards did promptly find and procure a purchaser therefor, the same being A. W. Canada, to whom the defendant sold the property on the _____ day of August, 1917."

In the trial court the defendant prevailed, and the plaintiff appealed.

The evidence for plaintiff is that it is a well-known real estate firm at Joplin, Mo., maintaining offices and an office force there; that, after making the above contract, the plaintiff made an effort to sell this property to several of its customers, some of whom came to plaintiff seeking to buy property, and others were hunted up by plaintiff as likely to buy such property; that the property was not advertised in the newspapers or by posting up a sale notice on the premises because the owner objected to so doing; that there were comparatively few customers for this property, as it was a highpriced, centrally located residence; that plaintiff's efforts to sell the property were kept up at every favorable opportunity till the property was sold. Plaintiff gave the names of a number of people to whom its manager and agents had tried to sell the property. It will be noted that the property was sold about four months after making the contract in question.

As to the actual sale of the property in question, the defendant claims that he "listed it" with the real estate agent, Edwards, two or three days before the purchaser, Canada, called on Edwards to inquire whetter he had such a residence property for sale; but plaintiff's manager testified that the defendant told him that the way he came to list it with Edwards was that he was present in Edwards' office when Canada phoned Edwards that he wanted to buy a residence and making inquiry as to what he had to sell, and that defendant then suggested to Edwards to sell Canada his residence and gave him a price of $12,500; that he did not really list it with Edwards, but just happened to be there at the time. Edwards very shortly sent a salesman to see Canada, who gave Canada the description, location, price, etc., and interested Canada in purchasing it. Edwards had not advertised the property or made any other effort to sell same. Either the same or the next day after Canada had gotten information as to this property through Edwards, he also made inquiry of plaintiff as to what residence property it had for sale, and plaintiff likewise sent an agent to Canada, who informed him as to this same property, but Canada informed such agent of his pending negotiations through Edwards looking to a purchaser of same. Shortly thereafter, Canada met the defendant, and defendant himself made the sale to Canada for $12,000; the papers being later made out and the deal fully consummated at Edwards' office.

The contract made between defendant and plaintiff relative to the sale of this property and plaintiff's commission therefor is a very drastic one, but defendant is an experienced business man and desired plaintiff's services in selling his property and must be held to have known its advantages and disadvantages. Defendant in giving the exclusive sale of his property desired to avail himself of plaintiff's standing and reputation and facilities for finding purchasers of real estate, including the well-known fact that persons desiring to purchase real estate resort to established real estate agencies to find suitable property for sale. The defendant by his contract clearly gave plaintiff the exclusive right to sell this property and agree( to pay it...