Lipscomb v. Mastin

• Decision Date: 21 February 1910
• Citation: 125 S.W. 1177,142 Mo.App. 228
• Parties: JOHN H. LIPSCOMB, Respondent, v. HERSCHELL F. MASTIN, Executor, etc., Appellant
• Court: Kansas Court of Appeals

125 S.W. 1177

142 Mo.App. 228

JOHN H. LIPSCOMB, Respondent, v. HERSCHELL F. MASTIN, Executor, etc., Appellant

Court of Appeals of Missouri, Kansas City

February 21, 1910

Appeal from Jackson Circuit Court.--Hon. Walter A. Powell, Judge.

Judgment affirmed.

T. B Wallace for appellant.

(1) The property not having been sold on the terms set forth in plaintiff's petition, he made no case. Cole v Armour, 154 Mo. 350; Warsaw v. McElroy, 33 Mo.App. 553; Reiger v. Biggs, 29 Mo.App. 421; Blackwell v. Adams, 28 Mo.App. 61; Lowry v Mining Co., 65 Mo.App. 266. (2) Plaintiff was not the procuring cause of the trade that was made, and the court should have given the declaration of law that the plaintiff could not recover. Gamble v. Grether, 108 Mo.App. 340; Henkle v. Dunn, 97 Mo.App. 671; Yoder v. White, 75 Mo.App. 155. (3) The plaintiff must be the procuring cause, the causa causans, not one of a chain of causes. Ramsey v. West, 31 Mo.App. 676; Crowly v. Sommerville, 70 Mo.App. 376. (4) Plaintiff, by attempting to represent both sides rendered invalid any contract that he might have had with Mastin. Dennison v. Gault, 132 Mo.App. 301; Rice v. Davis, 136 Pa. 439, s. c. 20 A. 513; Green v. Lumber Co., 141 Ala. 680, s. c. 37 So. Rep. 670; Chapman v. Currie, 51 Mo.App. 40. (5) Where an agent attempts to represent both sides, he must make a full disclosure of all the facts to both parties and obtain their consent thereto. Winter v. Cary, 127 Mo.App. 601; Corbin v. O'Neill, 207 Mo. 646. (6) Where several agents have the property for sale, the one who is the procuring cause of the sale, and not the one who first introduces the person who purchases, is entitled to the commission. Whitcomb v. Bacon, 170 Mass. 479; Am. and Eng. Ency. Law (2 Ed.), vol. 4, p. 983; Mead v. Arnold, 131 Mo.App. 214; Ward v. Fletcher, 124 Mass. 224; Vreeland v. Vetterlein, 33 N.J. L. 247; White v. Marion Bank, 61 N.Y. 416; Reigdon v. Strong, 128 Ill.App. 447; Earp v. Cummins, 54 Pa. 394; Vatow v. McKeever, 76 Kan. 870; Liversy v. Miller, 61 Md. 336; Dryer v. Ranch, 42 How. Pr. 22; Smith v. Kimball, 193 Mass. 582; Kiper v. Yoder, 198 Pa. 308; Geredean v. Gibson, 122 Ga. 313.

Joseph F. Rust and Sebree, Conrad & Wendorff for respondent.

OPINION

JOHNSON, J.

Plaintiff, a real estate agent in Kansas City, sued Reuben F. Mastin for a commission alleged to have been earned in the sale of a farm. Mastin died after the commencement of the suit and in due course the executor of his estate was made defendant. A jury was waived and a trial to the court resulted in a judgment for plaintiff for $ 3594.45. Defendant appealed and argues that his demurrer to the evidence should have been sustained on three grounds, viz., first, that the petition does not plead a cause of action in quantum meruit and the evidence, in whatsoever light considered, will sustain no other cause; second, that the evidence of plaintiff fails to show that the efforts of plaintiff were the procuring cause of the sale, and, third, that plaintiff attempted to act in the dual role of agent for each party to the transaction.

We shall dispose of the first point by saying that in the second count of the petition, plaintiff alleges and seeks to recover the reasonable value of the services. Facts pertinent to the other two points of the argument thus may be stated: Reuben F. Mastin, being old and in poor health, concluded to sell a farm he owned in Jackson county and, early in 1907, authorized plaintiff to make a sale at $ 100 per acre and agreed to pay him a commission of two and one-half per cent. The farm contained 1440 acres and was expensively improved. Plaintiff tried to sell the place to various persons and in August, 1907, was informed by Dr. McClure, a real estate agent of Sedalia, that a very old and infirm man, named Clement, who owned a farm of 800 acres near Sedalia, might be induced to buy the Mastin place and that negotiations might be successfully prosecuted with L. E. Mahan, who lived in Kansas City, was a son-in-law of Clement and his agent. Plaintiff introduced himself to Mahan, made known his business, took Mahan to the farm, introduced him to Mastin, had him shown over the place and tried to make a sale at $ 100 per acre. Negotiations ensued between Mastin and Mahan which culminated in April, 1908, in the sale of the Mastin farm to Clement at $ 100 per acre. In payment of the purchase price, Clement gave his farm of 800 acres in Pettis county, some residence property he owned in Sedalia and $ 84,500 in money. The negotiations had become involved and difficult of solution from two causes. First, the wide divergence of opinion respecting the value to be placed on the Pettis county farm and, second, the insistence of Mahan, resisted by Mastin, that the Sedalia residence be included in the transaction. Plaintiff labored indefatigably to bring the parties to an understanding but was unable to procure from Mahan a better offer for the Mastin farm than the conveyance of the Pettis county property and the payment of $ 70,000.

In February, 1908, Mahan refused to negotiate further through plaintiff, giving as his reasons that plaintiff persisted in the position that the Sedalia residence be left out of the deal, and that he was too zealous in his disparagement of the Pettis county farm. In deference to Mahan's feelings, Mastin tried to induce plaintiff to drop out of the deal, but plaintiff refused and Mastin did not attempt to revoke plaintiff's authority. He did employ other agents, i. e., Truitt & Company, and from that time on, the negotiations that resulted in the sale were conducted through Truitt & Company.

It is the contention of defendant that plaintiff had failed in his efforts to bring the parties to an accord; that he had so disgusted Mahan that if he attempted to go on with the negotiations, necessarily they would fail, and that he had expressed the intention to abandon his employment. The rule is invoked that while "courts have been careful to protect the agent who shakes the tree against the predations of a rival who would gather the fruit for himself . . . they have been just as careful to protect the second comer, whose toil has been productive against the unjust claims of the first whose efforts were impotent." [Meade v. Arnold 131...