Jewell Realty Co. v. Dierks

• Decision Date: 25 May 1929
• Citation: 18 S.W.2d 1043,322 Mo. 1064
• Parties: Jewell Realty Company, Appellant, v. DeVere Dierks and Dierks Investment Company
• Court: Missouri Supreme Court

18 S.W.2d 1043

322 Mo. 1064

Jewell Realty Company, Appellant, v. DeVere Dierks and Dierks Investment Company

Supreme Court of Missouri

May 25, 1929

Rehearing Overruled June 29, 1929.

Appeal from Jackson Circuit Court; Hon. Willard P. Hall Judge.

Affirmed.

Harry G. Kyle and Walter A. Raymond for appellant.

(1) There is no misjoinder of causes of action. Duvall v Tinsley, 54 Mo. 93; Lincoln v. Rowe, 51 Mo. 571; Kelly v. Hurt, 61 Mo. 463; Kirby v. Balke, 266 S.W. 704; Kilpatrick v. Wiley, 197 Mo. 123; Falder v. Dreckshage, 227 S.W. 929. (2) There is no misjoinder of parties defendant. Collins v. Crawford, 214 Mo. 167; Rinehart v. Long, 95 Mo. 396; Perkins v. Baer, 95 Mo.App. 70; Harrison v. Craven, 188 Mo. 590; Anable v. Land & Mining Co., 144 Mo.App. 303; Otto v. Young, 227 Mo. 193; Waddington v. Lane, 202 Mo. 387; Randolph v. Wheeler, 182 Mo. 145; Shelton v. Harrison, 182 Mo.App. 404. (3) The petition states a cause of action for specific performance. (a) The letter of defendant DeVere Dierks is a continuing offer to sell. Bay v. Wank, 215 Mo.App. 153, 255 S.W. 325; Smith v. Allen, 86 Mo. 178; Glass v. Rowe, 103 Mo. 537; Fleming v. Anderson, 232 S.W. 718; Tracy v. Aldrich, 236 S.W. 347; Clubb v. Scullin, 139 S.W. 420; Hutton v. Sherrard, 183 Mich. 356, 159 N.W. 135, L. R. A. 1915E. 976; Young v. Lanyon, 242 S.W. 685; Carter v. Blair, 201 Iowa 788, 208 N.W. 283; Allen v. Chouteau, 102 Mo. 309; Green v. Cole, 103 Mo. 70. (b) The essential terms of a contract are set out in the letter with sufficient particularity. Tracy v. Aldrich, 236 S.W. 347; Edwards v. Watson, 258 Mo. 631; Berberet v. Myers, 144 S.W. 824; Union Bag & Paper Corporation v. Bischoff, 255 F. 187; Tracy v. Aldridge, 236 S.W. 347; Hutton v. Sherrard, 183 Mich. 356, 159 N.W. 135, L. R. A. 1915E. 976; Smith v. Allen, 86 Mo. 178; Meeks v. Hurst, 191 S.W. 68; Smith v. Wilson, 160 Mo. 657; Edwards v. Watson, 258 S.W. 1119; Smith v. Riordon, 213 S.W. 61; Anderson v. Hall, 188 S.W. 79; Ranck v. Wickwire, 255 Mo. 42; Bredell v. Real Estate Co., 95 Mo.App. 676; Staroske v. Pulitzer Pub. Co., 235 Mo. 67; Am. Sugar Refining Co. v. Colvin Atwell & Co., 286 F. 685; McGinness v. Brodrick, 192 S.W. 420; Lumaghi v. Abt, 126 Mo.App. 221; Dunlop v. Baker, 239 F. 193. (c) The offer was accepted within the time and on the terms, thereby creating an enforceable contract. Black & Snyder v. Crowther & Andriano, 74 Mo.App. 480; Carter v. Tie & Timber Co., 184 Mo.App. 523, 170 S.W. 447; State v. Flutcher, 166 Mo. 582; St. L. & S. F. Ry. Co. v. Grucy, 126 Mo. 472; Hetcht v. Powell, 240 Ill.App. 124; Starks v. Long, 210 Ky. 68, 275 S.W. 24; Sec. 7058, R. S. 1919; Smith v. Wilson, 160 Mo. 657; Real Estate Co. v. Spelbrink, 211 Mo. 671, 692; Mastin v. Grimes, 88 Mo. 478; Warren v. Costello, 109 Mo. 388; Tevis v. Tevis, 259 Mo. 19; McCall v. Atchley, 256 Mo. 39. (d) Equity and good conscience require the specifc performance of this contract. Meek v. Hurst, 191 S.W. 68; Carter v. Love, 206 Ill. 310; Kirkpatrick v. Pease, 202 Mo. 471.

George Kingsley for respondent DeVere Dierks.

(1) The letter of defendant Dierks is not an offer to sell to Jewell Realty Company, but merely authorizes the company to act for Dierks in procuring a buyer. Meek v. Hurst, 223 Mo. 688; Chezum v. Kreigbaum, 4 Wash. 680, 30 P. 1098; Schuhmacher v. Lebeck, 103 Kan. 458, 173 P. 1072; Haydock v. Stow, 40 N.Y. 363. (2) Since the letter made the Jewell Realty Company the agent of Dierks for the purpose of procuring a buyer, the company could not itself become the buyer without making a new agreement with Dierks. (a) In absence of agreement as to amount of commission the agent is entitled to the customary commission. (b) Where the agent is authorized to sell for net price to the owner, the agent cannot take as commission the excess over net amount of selling price. (c) The agent has no authority to make a contract of sale for owner unless such authority is expressly given. (d) Under the terms of the letter Jewell Realty Company was authorized to procure a purchaser for the property and would have been entitled to his customary commission to be taken out of the excess in selling price above the $ 325,000 net which Dierks was to receive. 9 C. J. 538, 526, 580, 951; Meek v. Hurst, 223 Mo. 688; Tracy v. Aldrich, 236 S.W. 350; Davenport v. Casey, 222 S.W. 791; Witte v. Storm, 139 S.W. 387; Benson v. Watkins, 285 S.W. 407; O'Meara v. Laurena, 141 N.W. 312; Roy Realty Co. v. Burkhardt (Miss.), 111 So. 29; Lovva v. Worden, 152 N.W. 689; Childs & Rains v. Crithfield, 66 Mo.App. 422; Thompson v. Schell (Cal.), 161 P. 1006; Crowe v. McLear (Ky.), 255 S.W. 261; Grinde v. Chipman (Wis.), 185 N.W. 288; Cox v. Chalfant (Kan.), 181 P. 548; Dodd v. Grass (Iowa), 156 N.W. 848; Schuhmacher v. Lebeck, 103 Kan. 458, 173 P. 1072; Meek v. Hurst, 219 S.W. 619; Haydock v. Stow, 40 N.Y. 363. (3) The letter to the Jewell Realty Company authorizing it to act as agent in finding a buyer for the property cannot be used under the Statute of Frauds as a memorandum of the contract of sale itself. Meek v. Hurst, 223 Mo. 688; Meek v. Hurst, 219 S.W. 619; Warren v. Mfg. Co., 161 Mo. 112; Anderson v. Hall, 273 Mo. 307, 202 S.W. 539; Rucker v. Harrison, 52 Mo.App. 48; Ives v. Kimlin, 124 S.W. 23; Koob v. Ousley, 240 S.W. 102; Haydock v. Stow, 40 N.Y. 363.

J. S. Kirkpatrick for respondent Dierks Investment Company.

(1) The alleged acceptance was not made within the time provided. 39 Cyc. 841; Maynes v. Gray, 69 Kan. 49, 76 P. 443; Bailey v. Bailey, 207 N.W. 987; State ex rel. v. Perkins, 139 Mo. 115; Maginn v. Lancaster, 100 Mo.App. 131; Oberhaus v. State ex rel. McNamara, 173 Ala. 483; Carver v. Seevers & Bryan, 102 N.W. 518, 126 Iowa 669; Marcellus v. Wright, 202 P. 381. (2) The letter created an agency to sell. Meek v. Hurst, 223 Mo. 688; Schuhmacher v. Lebeck, 103 Kan. 458, 173 P. 1072. (3) An agent to sell cannot buy from his principal. Meek v. Hurst, 223 Mo. 688; 21 R. C. L. 829; 2 C. J. 700; 9 C. J. 538; Meek v. Hurst, 219 S.W. 619; Besser v. Allen, 111 A. 885, 43 R. I. 332; Benson v. Watkins, 313 Mo. 426, 285 S.W. 407; Connor v. Black, 119 Mo. 126. (4) The parties were never in agreement on the subject-matter involved. (5) There is a misjoinder of parties and causes of action. Gupton v. Gupton, 47 Mo. 37; Mueller v. Wall, 251 S.W. 119.

OPINION

Frank, J.

Plaintiff claims to have purchased from defendants by written contract certain real estate in Kansas City, and by this action seeks specific performance of that contract. A demurrer to the petition was sustained; plaintiff refused to plead over, suffered judgment and appealed.

The petition alleges, among other things, the following:

"Comes now the plaintiff and files this, its first amended petition, and for its cause of action states that it is now and at all times mentioned herein was a corporation duly organized and existing under and by virtue of the laws of Missouri and as such engaged in the real estate business in Kansas City, Jackson County, Missouri, and in the course of its business constructed, built, erected and operated large hotels, office buildings and other business properties in Kansas City, Jackson County, Missouri;

"That the defendant Dierks Investment Company is a corporation duly organized and existing under and by virtue of the laws of the State of Missouri and as such was engaged in buying, renting, operating and selling real estate and office buildings in Kansas City, Missouri; that on May 26, 1926, the defendant DeVere Dierks was the owner of a ninety-nine year lease on the following described real estate: All of Lots 71 and 72 in Swope's Addition to the city of Kansas, now Kansas City, Missouri, as shown on the recorded plat thereof being the southwest corner of 10th Street and Grand Avenue in Kansas City, Jackson County, Missouri; that he was the owner of the seven-story office building and elevators and machinery therein located on said property and generally and commonly known as the 'Gates Building' in said city; that he was in possession and in charge of the control and operation of said building and said property; that said defendant, DeVere Dierks, being desirous of selling said lease and building aforesaid did on the 26th day of May, 1926, by his sole and voluntary act draw up, execute and deliver to the plaintiff a written agreement and continuing offer to sell said property to plaintiff at any time within thirty-two days and before the expiration of the 26th day of May, 1926; that said written offer or agreement in the language of said defendant is in words and figures as follows, to-wit:

"'Gentlemen:

"'As you of course know we are the owners of the Gates Building which we purchased from the Gates Estate and are subject to a ninety-nine-year lease on the ground rental.

"'We are in a position to sell the building subject to the provisions in our contract with the Gates Estate and will sell it at this time at a price to net us $ 325,000 cash, not subject to any commission.

"'We do not care to keep this open longer than until June 26th, but should you be successful in producing a buyer on a basis that will net us $ 325,000 cash, we will clear up the remaining payments on the Gates Estate on the building itself, at the earliest possible date, and sell on this basis.'"

The petition further alleges that on Saturday, June 26, 1926 plaintiff notified defendant DeVere Dierks that it accepted said offer to sell and was ready, willing and able to perform its part of the contract, but defendant refused to sell to plaintiff and refused to perform his part of the contract; that on Monday, June 28, 1926, plaintiff again notified said defendant of its acceptance of said contract and that it was ready, willing and able to perform, and defendant, at that...