Langwell v. Willbanks, 34387.
| Decision Date | 21 June 1937 |
| Docket Number | No. 34387.,34387. |
| Citation | 106 S.W.2d 417 |
| Parties | LANGWELL et al. v. WILLBANKS et al. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Polk County; C. H. Skinker, Judge.
Action by R. A. Langwell and C. V. Langwell against J. I. Willbanks and Pearl Willbanks. From a judgment in favor of the plaintiffs, the defendants appeal.
Affirmed.
C. H. Jackson, of Mountain Grove, and Argus Cox, of Springfield, for appellants.
Gene G. Diemer, of Springfield, and H. D. Green, of West Plains, for respondents.
BOHLING, Commissioner.
R. A. and C. V. Langwell, husband and wife, instituted this action to rescind a contract for the purchase of real estate from J. I. and Pearl Willbanks, husband and wife, to recover back a part payment on the purchase price and to cancel their note for the balance of said purchase price and their deed of trust securing said note. The chancellor found for the plaintiffs, and defendants appeal.
Negotiations leading up to the sale and purchase were participated in by Messrs. Langwell, Willbanks and one Lovan, a real estate agent. The wives took no part in the transactions and did not testify. No charge of misrepresentations on the part of appellants are made.
The issues are whether or not Lovan was the agent of the Willbanks, and, if such agent, whether or not he made the misrepresentations charged.
1. Appellants contend there is no proof to sustain respondents' allegations to the effect that appellants listed said real estate with said Lovan; gave him general authority to sell the same and represent appellants as their agent in the transaction.
Mr. Langwell testified he was in the market for a small tract of land and went to the office of Jim Lovan, the real estate agent, in regard to some places Lovan had written about; that he inquired if Lovan had the tract here involved for sale; that Lovan replied he had and that it could be purchased for $2,000; that, after inspecting the real estate, he informed Lovan he was pleased with it but thought the price too high; and that Lovan informed him he had no authority to sell for a less price but, if witness could get Willbanks down, it was all right with Lovan. They returned to Lovan's office. Willbanks testified Lovan came to his store and stated, "I have a party who wants to know what you will take for that place"; that he informed Lovan he would not sell for less than $2,000, and went to Lovan's office, where he met Langwell. Willbanks testified he never offered the tract for sale; and, corroborated by Lovan, that he never listed the tract with Lovan, talked to Lovan concerning the tract only the one time, and had not authorized Lovan to sell the land. Accounts as to what transpired at Lovan's office differ. Langwell testified that the trade was discussed, he offering $1,800 and Willbanks not accepting; that Willbanks spoke about having to pay a commission and told Lovan: "I expect you to get your commission over and above that price"; that Lovan replied: "Well, there was nothing said about that"; that witness indicated he would break off negotiations and Lovan, remarking that the difference between them was small, offering to "knock off $25 on my commission"; that they finally agreed upon a $600 cash payment and a note, secured by a deed of trust back, for $1,400 for the real estate and went over to the bank where Mr. Bouchard drew up a contract of sale. Willbanks' testimony is to the effect that, after some discussion concerning the price, Lovan offered to knock off $25 on his commission and witness then stated: "For my part, if you want it I will take $1950 and let the other $50 go to pay the commission"; and that he did not pay Lovan's commission. Langwell testified nothing was ever said to him about paying the commission and he did not knowingly pay it. Mr. Bouchard, the banker, who drew up the contract, testified, "Langwell was to give Willbanks $600 in cash and a deed of trust on said real estate in the sum of $1400"; that Willbanks instructed him to give him credit for $550 and Jim Lovan for $50; that he wrote the contract, etc.; that Langwell took the deed of trust with him and he received it back in a few days with the note and Langwell's $600 remittance; that the deed and deed of...
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