Hughes & Thurman v. Dodd

• Decision Date: 01 April 1912
• Citation: 146 S.W. 446
• Parties: HUGHES & THURMAN v. DODD.
• Court: Missouri Court of Appeals

146 S.W. 446

HUGHES & THURMAN v. DODD.

Springfield Court of Appeals. Missouri.

April 1, 1912.

Rehearing Denied May 8, 1912.

1. BROKERS (§ 57) — COMMISSIONS — WHEN EARNED.

A broker employed to procure a purchaser of real estate for a specified sum for a commission must, to recover, procure a purchaser willing to pay the specified sum, and, though he renders services in procuring a purchaser finally purchasing at a less sum, pursuant to negotiations with the owner, he cannot recover.

2. BROKERS (§ 57) — COMMISSIONS — WHEN EARNED.

Where the contract for commission is conditional on the broker procuring a purchaser at a specified sum or more, unless he procures a purchaser willing to pay such sum, he cannot receive any compensation for his services; and, in such a case, the owner not interfering with the making of a sale by the broker at the stipulated price may sell at a less price without becoming liable for commissions.

3. CONTRACTS (§ 278) — CONDITIONS — PERFORMANCE.

Where a contract is made on a condition named, a party seeking to recover under it must bring himself within the condition.

Appeal from Circuit Court, Greene County; James T. Neville, Judge.

Action by Hughes & Thurman, a partnership composed of S. M. Hughes and another, against John M. Dodd. From a judgment for defendant, plaintiffs appeal. Affirmed.

F. T. Stockard, of Republic, and Hamlin & Seawell, of Springfield, for appellants. Patterson & Patterson, of Springfield, for respondent.

NIXON, P. J.

This is an action by plaintiffs as real estate brokers for their commission for the sale of defendant's property. Defendant obtained judgment, and plaintiffs appealed.

Appellants alleged in their petition "that on or about November, 1910, the defendant employed the plaintiffs to sell his livery barn for him, and agreed to allow them for their services the usual commission; that, in pursuance of said employment, they procured a purchaser for said barn, and that the defendant sold the same to said purchaser, and conveyed it by sufficient warranty deed, and received from said purchaser the sum of $5,000; that the usual commission allowed real estate agents for sales of this kind is 5 per cent. on the first thousand and 2½ per cent. on the remainder." The answer was a general denial. The evidence on behalf of plaintiffs showed that they were engaged in the real estate business in the town of Republic, and that defendant had formerly been engaged in the livery business in said town; that some time during the month of November, 1910, defendant placed his livery barn and the lot upon which it stood in plaintiffs' hands for sale under a special contract in regard to the commission which plaintiffs were to have for their services in making a sale. Such contract on behalf of plaintiffs' firm was made by S. M. Hughes with the defendant. The testimony of S. M. Hughes pertinent to the matter of commission was that defendant said to him: "Sammy, I will give you a good show, and, if you sell it for $5,500, I will give you a commission on $5,500, and I will give you all over that." On cross-examination Hughes testified: "He told me he would give me all over $5,500, and would pay a commission upon $5,500, if I got that much." The plaintiffs accepted this proposition, and, to use the words of Hughes, "started out to scare up a deal." The evidence on behalf of the plaintiffs also tended to show that within a short time after the contract was made with Dodd the plaintiffs tried to sell the property to Tom Nelson for $5,500, but that Nelson refused to buy the property at that price, and the deal fell through, and negotiations were dropped.

Plaintiffs did not contend that they had anything to do with the final sale of defendant's property to Nelson, which was consummated on the 25th day of January, 1911, by defendant, by which the barn and lot brought the sum of $4,150. The defendant denied that he made the contract testified to by Hughes, but admitted that he had placed the property in Hughes' hands to trade for a farm, or to sell for $6,000, and agreed to pay him a commission if he could sell the barn for $6,000, and that he agreed to give Hughes all over that amount. Defendant further testified that prior to the time he sold the property in question he had taken the same out of plaintiffs' hands with their consent. He was corroborated in this by one A. C. Miller. Tom Nelson, the purchaser of the property, testified that he knew that defendant's livery barn was for sale about three weeks before either of the plaintiffs said anything to him; that negotiations between plaintiffs and himself for the purchase of said property had fallen through long before he bought the property from the defendant; that he refused to give the amount plaintiffs were asking, and that he never would have given that sum; that his brother and Lum Miller were the ones that got him and Dodd together; that the terms of the sale were finally agreed upon the 25th of January, 1911, and that the price paid was $4,150. It is seen that...