Isaac T. Cook Co. v. Craddock-Terry Co.
| Decision Date | 02 November 1937 |
| Docket Number | No. 24062.,24062. |
| Citation | 109 S.W.2d 731 |
| Parties | ISAAC T. COOK CO. v. CRADDOCK-TERRY CO. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Robert J. Kirkwood, Judge.
"Not to be published in State Reports."
Action by the Isaac T. Cook Company against the Craddock-Terry Company, wherein defendant filed a counterclaim. From a judgment for plaintiff, defendant appeals.
Affirmed.
Clarence T. Case, David W. Voyles, and George L. Stemmler, all of St. Louis, for appellant.
William F. Fahey, Clark M. Clifford, and George F. Wise, all of St. Louis, for respondent.
Defendant below in due course brings this appeal from a directed verdict and judgment in favor of plaintiff on its alleged cause of action for a real estate agent's commission, and against defendant on its counterclaim.
Plaintiff's petition alleges that it procured a purchaser for property of the defendant with whom the defendant entered into a contract of sale and purchase; defendant agreeing to pay plaintiff $3,750 as its commission. Plaintiff's petition gives defendant credit for $1,000 earnest money which it received from the purchaser, and seeks judgment for the balance of $2,750.
The answer is a general denial and an affirmative defense that the defendant had been induced to enter into the contract of purchase and sale by the fraudulent misrepresentation of the plaintiff that the purchaser secured by it was able, willing, and ready to purchase the property. Defendant also filed a counterclaim, wherein it seeks to recover the $1,000 earnest money paid by the purchaser into the hands of plaintiff.
A trial was had, and at the conclusion of the case the court directed a verdict for plaintiff, both upon the principal cause of action, and also upon defendant's counterclaim, and rendered judgment in favor of plaintiff for $3,872.95, which was the full amount sued for, together with interest.
It appears that the defendant company, owner of a parcel of improved business property on Washington avenue, in St. Louis, sent out a general letter to various real estate companies in that city, stating that the property was for sale. As a result of this letter, plaintiff company, through its employee, L. F. Boedeker, sought out a purchaser for the property. He finally interested, in the purchase of the property, one George T. Burdeau, a man actively engaged in buying and selling property in the city of St. Louis. Burdeau was president and sole owner of the La Bu Realty & Investment Company. Boedeker obtained from Burdeau a definite offer from the La Bu Realty & Investment Company to pay $145,000 cash for the property, and obtained its signature to an earnest money contract in conventional form, dated May 24, 1928, which recites the receipt from the La Bu Realty & Investment Company of the sum of $1,000 as earnest and part purchase money for the property in question, "which property is this day sold to La Bu Realty & Investment Company for the total sum of $145,000, payable as follows: All cash less money herein receipted for, at closing of sale," and contained the further provision that: "This sale under this contract to be accepted by May 28, 1928, and closed or on before June 24, 1928, * * * and if not closed by that time, owing to the failure or neglect of the purchaser to comply with the terms herein, the above earnest money is to be forfeited, * * * but such forfeiture shall not release said purchaser herein from any liability for the fulfillment of this contract of sale, or the payments of money herein mentioned, if said seller shall elect to enforce fulfillment of the same." The sale was made subject to tthe approval of the owner. This earnest money receipt bore the signature of plaintiff company as agent, and the La Bu Company, by George T. Burdeau, president. Below these signatures appeared the words, "we hereby approve the above contract dated May 24, 1928, and agree to pay Isaac T. Cook Company ____ per cent commission thereon," with a line beneath for the signature of the owner of the property in the event the owner approved the contract of sale. Boedeker took this earnest money receipt to W. D. Hogan, resident manager and vice president of the defendant company. The price set on the property by the defendant had been $150,000, and Hogan took up the question of what plaintiff's commission would be, whereupon Boedeker took up the matter by telephone with his company, and told Hogan that they would accept $3,750 as commission, whereupon, at Hogan's request, on a letterhead of the defendant company, Boedeker dictated, signed, and left with Hogan a letter to the effect that, "if proposition that I submitted to you today for the sale of the building at 21st & Washington avenues is accepted, we agree to take for our commissions, $3,750, for our services in negotiating the sale." Four days later, Boedeker called on Hogan, who then gave him back the earnest money receipt with the acceptance thereon duly signed by the defendant company.
The La Bu Company did not carry out the terms of this contract. Some four or six months later, the defendant sold the property for $145,000 through another agent to the Burdeau Realty Company, of which Burdeau was the president, paying that agent a commission for such sale.
We take up first the point sought to be made by defendant here on appeal to the effect that the trial court erred in its ruling that the earnest money contract, together with the letter stipulating the amount of the commission to be paid plaintiff, as a matter of law entitled plaintiff to such commission at the time the earnest money contract was accepted by defendant company, irrespective of the fact that the contract of purchase was not thereafter actually carried out by the La Bu Company.
In passing upon this assignment of error, we note the rule that ordinarily a broker or agent is employed to produce a customer who is ready, willing, and able to pay for his principal's land, so that where the purported customer produced by the broker or agent is not able to pay, or does not pay for the land, the broker or agent has not performed his duty and has not earned his commission; but where the principal makes a valid and binding agreement for the sale of the land with the customer produced by the broker or agent, absent any contractual provision to the contrary, the principal thereby accepts the customer as ready, able, and willing to buy the land and pay for it, and the agent's commission is then due, although it may afterwards turn out that the customer was not financially able to buy, and in such cases it is not necessary that the broker or agent prove at the trial that the purchaser was able, ready, and willing to buy. Knisely v. Leathe, 256 Mo. 341, 372, 377, 166 S.W. 257, 266; Williams v. Sodini (Mo.App.) 267 S.W. 81; Pratt v. Irwin (Mo.App.) 189 S.W. 398; Parker v. Stadden (Mo.App.) 241 S.W. 973, 976; Youngman v. Miller, 210 Mo.App. 151, 156, 241 S.W. 433; Bird v. Rowell, 180 Mo.App. 421, 167 S.W. 1172; Lombard v. Sills, 170 Mo.App. 555, 157 S.W. 93. The principal may, however, when the facts warrant it, impugn the good faith of the agent and plead fraud on his part in the procurement of the contract as a defense in an action brought against him by the agent for commissions.
Having in mind the rule as above stated, together with the fact that the trial judge directed a verdict for plaintiff in the case below, our examination of the record discloses that plaintiff at the trial produced and introduced in evidence, as an exhibit, a conventional earnest money receipt, dated May 24, 1928, signed by La Bu Realty & Investment Company, a corporation, which therein agreed to purchase and pay for the property in question the sum of $145,000, all cash (less the sum of $1,000 earnest money acknowledged therein as having been received) on or before June 24, 1928. This earnest money receipt bore also the signature of the plaintiff company as agent of the owner. The receipt for the earnest money provided, among other things, that "this sale, under above terms and conditions, is made subject to the approval of the owner of this property," and "to be accepted by the owner by May 28, 1928."
Plaintiff also introduced in evidence, without objection, a paper which had been produced by counsel for defendant on the occasion of defendant taking the deposition of L. F. Boedeker, an employee of plaintiff who carried on the negotiations for the sale of the property between defendant and Burdeau, president of the La Bu Realty & Investment Company, which paper had been exhibited to the witness by counsel for defendant and marked for identification Defendant's Exhibit B. This paper was a letterhead of the defendant company, and on it was written in typewriting:
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