Low v. Paddock
| Decision Date | 05 April 1920 |
| Docket Number | No. 13520.,13520. |
| Citation | 220 S.W. 969 |
| Parties | LOW v. PADDOCK. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, De Kalb County; Alonzo D. Burns, Judge.
"Not to be officially published."
Action by Gustus L. Low against F. G. Paddock. Verdict for plaintiff set aside on motion for new trial, and plaintiff appeals. Affirmed.
Randolph & Randolph, of St. Joseph, for appellant.
Williams & Robinson, of Maysville, for respondent.
This controversy is over that abounding, ever present, meaty bone of contention—the right of a real estate broker to commissions.
The petition charges that defendant listed his farm for sale with plaintiff, a broker, and agreed to pay as a commission 2½ per cent. on the sum realized "if he should find a purchaser"; that "plaintiff found a purchaser ready, able, and willing to buy said real estate, and was the procuring cause of the sale of said real estate to John Haley at the price and sum of $35,000"; that said farm was sold to Haley, and thereby defendant became indebted to plaintiff in the sum of $875. The answer was a general denial.
A trial resulted in a verdict for plaintiff in the full sum asked; but said verdict, on motion for new trial, was set aside, the court giving as reasons therefor that it had erred in the admission of certain evidence, in refusing defendant's instruction No. 8, and because plaintiff's instructions did not state that plaintiff must have been the procuring cause of the sale. The plaintiff appealed.
Defendant owned a farm, and plaintiff, a real estate broker, called on him in an effort to get defendant to list the farm with him for sale. According to plaintiff's evidence, defendant listed the farm with him for sale at a commission of 2½ per cent. on the amount realized. It is a little difficult to determine from plaintiff's evidence whether the contract was that plaintiff should sell the farm for defendant, or whether he was to merely find a purchaser. The first part of the conversation, as detailed by plaintiff, seems to indicate that plaintiff was to effect a sale; while in the last part plaintiff says he remarked to defendant, "I believe I can find you a customer for the farm," etc., and then told defendant that Sam Matter might buy it, whereupon plaintiff replied that he knew Sam Matter and would like to sell the farm to him. Plaintiff said he was going out with Sam that day and would bring him up, whereupon defendant asked him when, and, upon being told that plaintiff would possibly do so before noon, defendant said, "All right, go ahead." Defendant denies that he listed the farm with plaintiff for sale, but did consent that plaintiff might bring Sam up to look at the farm. There is evidence, however, in the record sufficient to make it a jury question whether or not defendant listed the farm with the plaintiff.
Thereupon plaintiff went away, and shortly returned, bringing with him Mr. and Mrs. Sam Matter in plaintiff's automobile, and they looked over the farm. Defendant asked $175 an acre, but Matter offered only $105, which defendant refused, and plaintiff sought to get defendant to "split the difference," but defendant would not do so. Thereupon plaintiff and Mr. and Mrs. Matter left to go to their home in plaintiff's car. Matter's father-in-law, Mr. Haley, who lived five or six miles from defendant Paddock's farm, had previously requested Matter, when passing next time, to stop and see him, and, on the way home from the Paddock farm in plaintiff's car, Matter requested plaintiff to drive them by his father-in-law's home, which plaintiff did. Arriving at Mr. Haley's, Matter and his wife went into the house for a while, and, during their visit, plaintiff played croquet with the boys in the yard. After Mr. and Mrs. Matter had been in the house about an hour, Matter came out with Mr. Haley, and plaintiff and the latter were introduced to each other. During the five or ten minute casual conversation that ensued, Haley remarked to plaintiff, "Have you many good farms for sale around here?" Plaintiff replied:
Haley replied, "I think so." This, according to even plaintiff's testimony, was all that was said between them on the subject of real estate. Haley says plaintiff did not mention the Paddock farm. The conversation between them lasted only a few minutes, and, the Matters having made ready to go, plaintiff drove away with them to their home. Plaintiff had not theretofore met Haley, did not know him, and had no idea he was thinking of buying a farm.
It seems, however, that while Matter was in the house he told his father-in-law Haley where he had been, talked of the defendant Paddock's farm being for sale, and told Haley the price. In this conversation Matter agreed to buy his father-in-law's farm. Both Matter and Haley, who were plaintiff's witnesses, say that nothing was said between them about Matter buying Haley's instead of Paddock's farm and letting Haley have the latter. They both say, however, that in this conversation in the house Matter bought Haley's farm. Haley says that he knew, before his son-in-law told him, that Paddock wanted to sell his farm, but for the first time learned from his son-in-law the exact price.
Very shortly after the day plaintiff and the Matters were at Haley's, the latter started out to hunt for a place, as he had sold his farm to Matter. He and his son-in-law met by agreement in the village of Amity to have their contract drawn up; but, the conveyancer being out of town, they could not have it drawn, and, as they were leaving, Haley asked his son-in-law to go with him to look at the Paddock farm. Matter did so, and Haley purchased it at $175 per acre; Paddock agreeing to throw in three tanks, two thoroughbred cattle, some hay ropes, and hay-fork.
Plaintiff, upon learning that Paddock had sold his farm, claimed that he was entitled to his commission, and in this suit alleges that he procured Haley as a purchaser and was the procuring cause of the sale.
Instruction No. 2 for plaintiff told the jury that if defendant agreed to allow plaintiff a commission for finding or sending to defendant a buyer to whom he could sell his farm, and that if the "plaintiff was instrumental in sending John Haley to defendant or in bringing defendant and said John Haley together for that purpose, then the jury should find for plaintiff."
Instruction No. 3 said, in substance, that if defendant agreed to pay any commission for finding or sending him a purchaser, and that the "attention of the purchaser, John Haley, was called to the farm through the instrumentality of the plaintiff, whether directly or indirectly, and that because of the information conveyed, either directly or indirectly, to the said John Haley by the plaintiff," the purchaser Haley and the defendant were brought together and a sale resulted, then the finding should be for plaintiff.
These instructions were erroneous. Russell v. Poor, 133 Mo. App. 723, 728, 729, 119 S. W. 433. It is well settled that before the broker is entitled to recover, he must be the procuring...
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