J. C. McCray & Son v. Pfost

• Decision Date: 04 June 1906
• Citation: 118 Mo. App. 672,94 S.W. 998
• Parties: J. C. McCRAY & SON v. PFOST.
• Court: Missouri Court of Appeals

94 S.W. 998

118 Mo. App. 672

J. C. McCRAY & SON v. PFOST.

Kansas City Court of Appeals. Missouri.

June 4, 1906.

1. BROKERS—AGENCY COUPLED WITH INTEREST —TERMINATION.

Where a broker employed to sell land has in good faith incurred expenses and expended time and labor in performing the agency, it becomes an agency coupled with an interest, which the principal will not be permitted to terminate at will.

2. SAME — PERFORMANCE OF EMPLOYMENT — RIGHT TO COMMISSIONS.

A broker employed to sell land before entitled to commissions must find and produce to the owner, a purchaser who offers and is ready, willing, and able to make the purchase on the authorized terms, or to respond in damages in case of his failure to perform, or he must procure from such purchaser and tender to the owner a valid written contract, containing terms which the owner may enforce if necessary.

3. SAME.

A broker employed to sell land, while bound to produce a purchaser, is not required to exhibit him in person to the owner, but it was sufficient that the purchaser had authorized the broker to say to the owner that he will take the land.

Error to Circuit Court, Caldwell County; J. W. Alexander, Judge.

Action by J. C. McCray & Son against Aaron Pfost. From a judgment for plaintiffs, defendant brings error. Affirmed.

William McAfee and Crosby Johnson, for plaintiffs in error. O. J. Chapmen and J. D. Allen, for defendant in error.

BROADDUS, P. J.

The plaintiffs allege that they were engaged in the business of real estate agents; that on the 12th day of July, 1902, defendant employed them to sell his farm, situated in Caldwell county, Mo., containing 160 acres, at and for the price of $65 per acre, and for the selling of which they were to receive a commission of $300; that on or about the 7th day of November, 1902, plaintiffs found a purchaser for said farm in the person of one Sidney R. Timbrook; that said Timbrook was ready and willing and able to pay for said farm at said price, and so informed defendant, and offered to close the purchase, but he refused to comply with the terms of said contract with plaintiffs, and refused to sell said farm to the purchaser so produced. They ask judgment for their commission in the sum of $300. Defendant filed a general denial. The case was tried before the court without the intervention of a jury. The judgment was for the plaintiffs, from which defendant sued out a writ of error.

The evidence tended to show that on the 12th of July, 1902, defendant authorized plaintiffs to offer his place for sale until the 1st day of January, 1903, at $65 per acre, and agreed in case of sale to allow them $300 commission; that on an intervening date, the 6th day of November, they found a purchaser at the price named in the person of one Sidney R. Timbrook, who, after looking over the farm, asked defendant to give him some time to think over and further consider the matter before closing the deal; and that defendant acceded to the request, but the said Timbrook, after going to Cowgill nearby, sent one E. A. King and one of the plaintiffs to defendant's home to ask again for further time (until the following Friday) to consider the matter, with instructions that, if defendant refused to grant such request, to then tell defendant that he would take the place, paying him cash at $65 per acre. The evidence showed that Timbrook was well able to pay the cash for the farm, or to respond in damages if he failed to comply with any contract of purchase he might make.

The evidence upon defendant's part went to show that he authorized plaintiffs to offer his farm for sale at the price of $65 per acre, but with the further understanding that he was to have, in addition to said price, pay for all improvements which he might make on the premises between said 12th day of July and the day of sale; that the time in which plaintiffs were to make the sale was not fixed but indefinite; that it was also one of the conditions on which a sale should be made that his wife should consent thereto; that he and his wife, after consulting about the matter, concluded not to sell, and so notified plaintiffs, and requested them to take it off the market.

The evidence as to what was said when King and plaintiff Robert McCray went back to defendant's place on the evening of the day that Timbrook was there is somewhat conflicting. The plaintiffs' evidence tended to...