Laforce v. Washington University

• Decision Date: 16 May 1904
• Citation: 81 S.W. 209,106 Mo.App. 517
• Parties: FELIX L. LaFORCE, Appellant, v. THE WASHINGTON UNIVERSITY, Respondent
• Court: Kansas Court of Appeals

81 S.W. 209

106 Mo.App. 517

FELIX L. LaFORCE, Appellant, v. THE WASHINGTON UNIVERSITY, Respondent

Court of Appeals of Missouri, Kansas City

May 16, 1904

Appeal from Jackson Circuit Court.--Hon. W. B. Teasdale, Judge.

Judgment affirmed.

Haff & Michaels and L. W. McCandless for appellant.

(1) The plaintiff had express authority to act as the agent of defendant from the twenty-first of October, 1901, until the twenty-first of February, 1902. Alger v. Keith, 105 Fed. (6 C. C. A.) 105; Rees v. Pellow, 97 Fed. (6 C C. A.) 167; Clark v. Reeder, 40 F. 515; S. C., 158 U.S. 523; Chezum v. Kreighbaum, 4 Wash. 680; Crittenden v. Armour, 80 Ia. 221; Hough v Richardson, 3 Story (U.S.C. C.) 659; Doggett v Emerson, 3 Story (U.S.C. C.) 700; Daniel v. Mitchell, 1 Story (U.S.C. C.) 172; Williams v. Railway, 153 Mo. 487; Carter v. Foster, 145 Mo. 383; Ellis v. Harrison, 104 Mo. 279; Ide v. Leiser, 10 Mont. 11; Saddlery Co. v. Kingman & Co., 42 Mo.App. 214; Smith v. Van Wyck, 40 Mo.App. 525; Lumber Co. v. Warner, 93 Mo. 384; Edwards v. Smith, Admr., 63 Mo. 126; Kuntz v. Tempel, 48 Mo. 78. (2) The plaintiff had implied authority to act as the agent of defendant from the twenty-first of February, 1902, until the twenty-sixth of March, 1902. Strother v. DeWitt, 98 Mo.App. 298; Veatch v. Norman, 95 Mo.App. 505; Stringfellow v. Elsea, 45 S.W. 418; Kerr v. Cusenbary, 60 Mo.App. 563; Ellis v. Dunsworth, 49 Ill.App. 190; Painter v. Ritchey, 43 Mo.App. 113; State ex rel. v. Holladay, 61 Mo. 319; Redfield v. Tegg, 38 N.Y. 213. (3) The plaintiff was the procuring cause of the sale of defendant's property. Veall v. Green, --Mo. App.--; McCormack v. Henderson, 75 S.W. 171; Hogan v. Slade, 95 Mo.App. 44; Veatch v. Norman, 95 Mo.App. 500; Grether v. McCormick, 79 Mo.App. 325; Wright v. Brown, 68 Mo.App. 577; Henderson v. Mace, 64 Mo.App. 393; Day v. Porter, 60 Ill.App. 386; Gelatt v. Ridge, 117 Mo. 553; Brennan v. Roach, 47 Mo.App. 290; Stinde v. Blesch, 42 Mo.App. 578; Wetzell v. Wagoner, 41 Mo.App. 509; Jones v. Berry, 37 Mo.App. 125; Smith v. McGovern, 65 N.Y. 574; Sussdorf v. Schmidt, 55 N.Y. 319; Tyler v. Parr, 52 Mo. 249. (4) The plaintiff is entitled to compensation for his services as agent. Veatch v. Norman, 95 Mo.App. 500; Remedy Co. v. Grocer, 90 Mo.App. 53; Rees v. Pellow, 97 Fed. (6 C. C. A.) 167; Page v. Griffin, 71 Mo.App. 524; Green v. Cole, 127 Mo. 601; Glover v. Henderson, 120 Mo. 377; Knox v. Parker, 2 Wash. 37; Massey v. Young, 73 Mo. 273; Baldwin v. Whitcomb, 71 Mo. 658.

Lathrop, Morrow, Fox & Moore and Samuel W. Sawyer for respondent.

(1) The option contract of October 21, 1901, did not make the plaintiff the defendant's agent to sell the property in question. 21 Am. and Eng. Ency. Law (2 Ed.), 924, 1084; Boggs v. Pacific Co., 171 Mo. 282; Tracy v. Iron Works, 104 Mo. 193; Gorton v. Rice, 153 Mo. 676; Bank v. Cushman, 66 Mo.App. 102; Kenefick v. Missouri Co., 72 Mo.App. 381; Mfg. Co. v. Hunter, 87 Mo.App. 50; Mfg. Co. v. Jaeger, 81 Mo.App. 239; Alger v. Keith, 105 F. 105, 44 C. C. A. 371; McConkey v. Peach Co., 68 F. 830, 16 C. C. A. 8; Southack v. Lane, 52 N.Y.S. 687; Renard v. Sampson, 12 N.Y. 561; Graham v. Sadlier, 165 Ill. 95, 46 N.E. 221; Ide v. Leiser, 10 Mont. 5, 24 P. 695, 24 Am. St. 17; Black v. Maddox, 104 Ga. 157, 30 S.E. 723; Cummings v. Realty Co., 86 Wis. 382, 57 N.W. 43. (2) The plaintiff was not otherwise made an agent by the defendant. Morawetz, Corp. (2 Ed.), sec. 537; 3 Cook, Corp. (4 Ed.), secs. 712, 716; 4 Thompson, Corp., sec. 4652; Trust Co. v. Bridges, 57 F. 753, 6 C. C. A. 539; Tobin v. Railroad, 86 F. 1020; Extension Co. v. Skinner, 28 Colo. 237, 64 P. 198; Castner v. Richardson, 18 Colo. 496, 33 P. 163; Groeltz v. Armstrong Co., 115 Ia. 602, 89 N.W. 21; Samuels v. Luckenbach, 205 Pa. St. 428, 54 A. 1091. (3) The plaintiff was not the procuring cause of the sale which was made. 23 Am. and Eng. Ency. of Law (2 Ed.), 918, 44 L. R. A. 321; Loving v. Cattle Co., 176 Mo. 330; Ramsey v. West, 31 Mo.App. 676; Wolff v. Rosenberg, 67 Mo.App. 403; Pollard v. Banks, 67 Mo.App. 187; Yoder v. White, 75 Mo.App. 155; Haden v. Grillo, 26 Mo.App. 289. (4) Even if plaintiff had had an agency he would not be entitled to commissions on a sale made after its termination in the absence of bad faith on the part of the defendant. Loving v. Cattle Co., 176 Mo. 330; Cosgrove v. Leonard, 175 Mo. 100; Beauchamp v. Higgins, 20 Mo.App. 514; Page v. Griffin, 71 Mo.App. 524; Gaty v. Foster, 18 Mo.App. 639; Jones v. Berry, 37 Mo.App. 125; Cox v. Bowling, 54 Mo.App. 289; Crowley v. Somerville, 70 Mo.App. 376; Henkel v. Dunn, 97 Mo.App. 671; Warren v. Cram, 71 Mo.App. 638; Gregg v. Loomis, 22 Neb. 174, 34 N.W. 355; Rees v. Pellow, 97 F. 167, 38 C. C. A. 94; Sullivan v. Milliken, 113 F. 93, 51 C. C. A. 79; Alden v. Earle, 121 N.Y. 688, 24 N.E. 705; Wylie v. Bank, 61 N.Y. 415; Sibbald v. Iron Co. , 83 N.Y. 378, 38 Am. 441; Frey v. Klar, 69 S.W. 211; Neal v. Lehman, 11 Tex. Civ. App. 461, 34 S.W. 153; Fultz v. Wimer, 34 Kan. 576, 9 P. 316; Gillett v. Corum, 5 Kan. 608; Watts v. Howard, 51 Ill.App. 243; Stedman v. Richardson, 100 Ky. 79, 37 S.W. 259; Fairchild v. Cunningham, 84 Minn. 521, 88 N.W. 15; Cullen v. Bell, 43 Minn. 226, 45 N.W. 428; Zeimer v. Antisell, 75 Cal. 509, 17 P. 642. (5) If there had been any agency, it could only have been at a "net to me" price of $ 56,500, and since defendant did not net more than this sum, plaintiff would not be entitled to anything. Crowley v. Somerville, 70 Mo.App. 376; Frey v. Klar, 69 S.W. 211; Autisdel v. Canfield, 119 Mich. 229, 77 N.W. 944; Babcock v. Merritt, 1 Colo.App. 84, 27 P. 822.

OPINION

ELLISON, J.

This action was instituted by plaintiff to recover a commission for the sale of real estate in Kansas City, Missouri, belonging to defendant. The trial court found against the plaintiff and judgment being entered for defendant the former appealed.

It appears that the plaintiff resided in Kansas City and that the defendant was at St. Louis, and that they entered into a written contract concerning the sale of the property. This contract was executed on the twenty-first of October, 1901, and was to be enforced for the limited time of ninety days, which period expired January 21, 1902. But some ten or twelve days before the limit expired it was extended, by mutual agreement, for a period of thirty days further, such extension expiring on February 21, 1902. Before the contract was executed, plaintiff thought he could sell the property if he had the exclusive control of it; he had especially in view, as purchasers, a firm of wholesale merchants in Kansas City. We here set out the contract:

"Kansas City, Mo., Oct. 21, 1901.

"This memorandum of agreement by and between Washington University, a corporation under the laws of Missouri, party of the first part, of St. Louis, Missouri, and Felix L. LaForce, of Jackson county, Missouri, party of the second part, witnesseth: Said party of the first part for and in consideration of the sum of one dollar paid by second party, the receipt of which is hereby acknowledged, does hereby give the said second party the exclusive option and privilege, to buy their southeast corner of Eighth and May streets, Kansas City, Missouri (describing it). The price agreed upon by said first party to sell to said second party, is the sum of fifty-six thousand and five hundred dollars, net, for the 150x142 feet, no commission to be paid by said first party.

"Terms: Cash, or one-third cash; deferred payments to bear interest at five per cent from January 21, 1902.

"This contract or option to purchase is to run for ninety days from this date. In the event of purchase by the said second party, or his assigns, the said first party is to convey said real estate free and clear of all encumbrance, except West Terrace Park assessment and they also agree to furnish a complete abstract from government down to date; also certificates as to judgment and taxes.

"In the event second party elects to buy said real estate within the time herein agreed, or sells the same, the said first party is to give the second party, or his assigns, thirty days extra time to examine title and close the deal. Said thirty days extra time is to date from the date of expiration of this contract.

"In the event said second party fails to take advantage of the terms of this contract, as herein specified, this instrument becomes void."

On the reverse side is the following:

"St. Louis, Mo., Jan. 10, 1902.

"By mutual consent the above contract is extended until February 21, 1902."

During the first ninety days' period plaintiff made diligent effort to sell, but towards the latter part he saw he would not be able to consummate a sale within the time limited and he sought an extension for another period of ninety days. The defendant refused that length of time, but did extend the contract for a period of thirty days, as already stated and as is shown in the copy just set out. Plaintiff faithfully pursued his endeavor to sell through the extended time but without success. He endeavored to obtain another extension within which he hoped to make a sale, but defendant refused. Several months after the expiration of the extended time, defendant sold the property to the wholesale firm with whom plaintiff had been negotiating from the beginning. Plaintiff claimed the usual and customary commission on sales of that magnitude which defendant refused to pay, contending that it was under no obligation to pay any amount.

The parties agree, as, of course, they must that the written contract governs and determines their relations. Plaintiff's contention is that the contract secured to him an option on the property and also an agency to sell it; or that as to an agency, it was, at least, ambiguous, and that when...