Lorton v. Trail

• Citation: 216 S.W. 54
• Decision Date: 10 November 1919
• Docket Number: No. 13299.,13299.
• Parties: LORTON et al. v. TRAIL.
• Court: Court of Appeal of Missouri (US)

216 S.W. 54

LORTON et al. v. TRAIL.

No. 13299.

Kansas City Court of Appeals. Missouri.

November 10, 1919.

Appeal from Circuit Court, Adair County; James A. Cooley, Judge.

"Not to be officially published."

Action by George Lorton and another against James Trail. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

Higbee & Mills, of Kirksville, for appellant. Weatherby & Frank, of Kirksville, for respondents.

BLAND, J.

This is a suit for a real estate commission. Defendant was the owner of 80 acres of farm land and 10 acres of timber land in Adair county, Mo. Defendant, being " anxious to sell his land, employed plaintiffs to find a buyer for his farm, and agreed with them that they should receive a cash commission of $200 and the 10 acres of timber land for their services. The next day one of the plaintiffs showed the farm to one Alec Parr, and shortly thereafter defendant and Parr were introduced to each other by one of the plaintiffs in plaintiffs' office. Several conversations were had in plaintiffs' office between defendant and Farr in reference to the sale of the farm. Shortly after the negotiations had started defendant and Parr went to plaintiffs' office, and told one of them that Farr was very anxious to buy the farm, but that he wanted the 10 acres of timber land along with the farm if he made the deal, and defendant asked plaintiffs at the time to release the 10 acres so that Farr could get it. This was agreed to by plaintiffs, and thereupon an understanding was had between plaintiffs and the defendant that if Farr or either of his sons purchased the farm, plaintiffs were to have $200 for their commission. This agreement was made for the reason that defendant told plaintiffs that Farr was trying to beat plaintiffs out of their commission, and that, "You boys was selling the farm, and you will get your $200 regardless of which Farr gets it." Alec Parr was anxious to buy the farm, but his wife, who was to furnish a portion of the money, did not like it, as disclosed by defendant's evidence, and for this reason, according to defendant's evidence, Alec Farr did not buy the farm. All of the foregoing transactions occurred during the months of September and October, 1916.

Defendant introduced evidence tending to show that in November, 1916, John C. Mills, hearing that defendant had a farm for sale, entered into a written contract for the sale of the farm and timber land to Mills for the sum of $7,000. On Thanksgiving Day Mills' son was hunting near the farm of Harry Parr, Alec Farr's son. Harry Farr testified that his farm was rough, and that he wanted a place to send his boys to school, and that Mills' son told him of his father's, John C. Mills' place, and that it was near a good school, and he asked Harry Farr to come and see his father in reference to it. Harry Farr afterwards looked at the place, and then went to see John C. Mills about buying it. A written contract was made between Mills and Harry Farr on December 9, 1916, wherein the farm and timber land was sold to Harry Farr by Mills for the sum of $7,200. Harry Parr had no cash. He borrowed $400 of the purchase price from the bank, $1,200 of his father and $2,400 of his mother, for which he gave notes, and gave a mortgage back for $3,200 to cover the balance of the purchase price. Hanry Farr did not know defendant at the time he looked at the farm. Plaintiffs never made any effort to sell the land to Mills or Harry Farr. John C. Mills testified that at the time he sold the land to Harry Farr he had not yet received a deed from defendant, and for convenience and the saving of expense he asked defendant to convey the farm directly to Harry Farr, which defendant did on the 10th day of January, 1917. Thereafter Alec Farr, who had sold his own place, and his wife moved on the farm under an agreement to pay to Harry Farr rent therefor, which was paid. Alec Farr and his wife were living upon the place at the time of the trial of this case, which was on February 7, 1919. The Farrs, Mills, and defendant denied that there was any collusion in any of these transactions.

The petition in the case alleges that defendant employed plaintiffs to Sell the farm and timber lands, and to pay them for their services a commission of $200, provided that they should find or produce a man to whom defendant could sell his said lands, and that thereafter plaintiffs found and produced a man to whom the defendant thereafter sold his said farm lands; that plaintiffs had demanded their commission of defendant, and defendant has refused to pay the same. The answer was a general denial. The jury found a verdict in favor of plaintiffs in the sum of $200, and defendant has appealed.

It is contended by the defendant that the evidence fails to prove the cause of action alleged, and among the reasons assigned for this contention is that there was no fraud proven. The undisputed evidence in this case shows that the land was not sold to Alec Parr or to one of his sons, but to John C. Mills; and, unless plaintiffs have shown some fraud practiced by the defendant, wherein defendant, after having actually sold the property to Alec Farr, or one of his sons, conveyed the land to Mills as a mere blind or form for the purpose of making it...