Lyell v. Cox

• Decision Date: 07 November 1922
• Docket Number: No. 17234.,17234.
• Citation: 245 S.W. 343
• Parties: LYELL et al. v. COX.
• Court: Missouri Court of Appeals

245 S.W. 343

LYELL et al. v. COX.

No. 17234.

St. Louis Court of Appeals. Missouri.

November 7, 1922.

Appeal from Circuit Court, Shelby County; V. L. Drain, Judge.

"Not to be officially published."

Action by John R. Lyell and another, administrators with the will annexed of the estate of Howell H. Jewett, deceased, against G. W. Cox. Judgment for defendant, and plaintiffs appeal. Reversed and remanded.

Harry H. Libby, of Shelbina, for appellants.

James P. Boyd, of Paris, for respondent.

BECKER, J.

This is an action to recover a broker's commission for procuring a purchaser to buy defendant's farm. There was a verdict for defendant and an appeal taken from the resulting judgment.

Howell H. Jewett in his lifetime brought this action against the defendant, G. W. Cox. Jewett died before the case came up for trial. The cause was thereupon revived in the name of the administrators pendente lite who were appointed pending a contest of the will of the said Jewett, and at the conclusion of that litigation John L. Lyell and Arthur E. Jones, as administrators of the estate of the said Jewett, deceased, with the will annexed, were substituted as parties plaintiffs in the cause.

The defendant was the owner of 140 acres of farm land in Shelby county, Mo., and on July 2, 1919, he listed his farm for sale with Howell H. Jewett. Under the terms of this written agreement, the defendant appointed Jewett as his agent and authorized him to sell the farm at $93 per acre net to the defendant on the terms ef $1,000 cash and the balance of $12,020 to be paid on March 1, 1920, when a deed to and possession of the land were to be delivered to the purchaser. The contract of agency was to continue until January 1, 1920, and thereafter until one day's notice in writing be given plaintiff of the cancellation of the agency. In the event of a sale the contract provided that Jewett was to receive as a commission any and all sums obtained in excess of $93 per acre.

Jewett employed A. F. Carmichael to assist him in finding a purchaser for defendant's farm. Carmichael called the attention of various people to the farm, among others V. G. Ballance and J. P. Ballance and Leo Wright.

About the middle of July, 1919, the defendant had a conversation with V. G. Ballance and agreed that in the event said Ballance procured a purchaser for his farm at $100 per acre he would make him a present of $280, defendant telling Ballance, however, "I want you to understand you are no agent; I am making you a present of $280."

The defendant sold his farm on July 28, 1919, to J. P. Ballance and Leo Wright for the sum of $14,000, being $100 per acre. Under the terms of sale defendant accepted a note for $1,000 payable larch 1, 1920, without interest, and the balance to be paid in cash on the due date of the note, at which time possession of the farm together with the deed therefor were to be delivered. While this said contract of sale was made out to J. P. Ballance and Leo Wright, V. G. Ballance was in fact a silent partner in the deal and all three participated in equal shares in the $280 which the defendant ultimately paid V. G. Ballance, as defendant puts it, "as a gift," for obtaining him a purchaser for his farm.

Plaintiffs adduced testimony tending to prove that Carmichael had been the procuring and inducing cause in the sale in question, and that the only reason that the sale was not closed through Jewett was that the defendant had circumvented Jewett by offering $280 to V. G. Ballance as a present if he found him a purchaser, and by the defendant varying the terms of the purchase, making it more favorable to the purchasers than Jewett, through Carmichael, had made them.

As to the defense: The defendant Cox himself testified that along about the middle of July, 1919, he had promised V. G. Ballance $280 if he could find him a purchaser for his farm; that on the 28th day of July, 1919, about noontime, he met V. G. Ballance on the street in the town of Leonard, Mo., and Ballance stated to him, "I have got a couple of fellows to buy it," and upon defendant asking, "Who are they?" Ballance pointed out Leo Wright and J. P. Ballance; that thereupon defendant, Wright, and J. P. Ballance went over to the bank and fixed up a contract of sale; that later on in the afternoon, several hours after the deal had been closed, Carmichael and Jewett came to see him at his home and claimed that they were entitled to a commission on the sale in that they had procured and induced J. P. Ballance and Leo Wright to buy the farm.

Upon cross-examination defendant was asked:

"Who have you considered found the purchasers for this land and sold it? A. Virgil Ballance. Q. When did you first learn and become aware that V. G. Ballance had found the purchaser and sold this land for you? A. The day I sold it."

Defendant further testified that two or three days after the contract for sale had been entered into he went to see Mr. Davis, president of the local bank, together with V. G. Ballance, to have Mr. Davis act as arbitrator to determine the question as to whether he (Cox), under the facts, owed V. G. Ballance the $280 as for obtaining him a purchaser for his farm; that they both stated their case to Mr. Davis, and he being of the opinion that V. G. Ballance was entitled to the $280, the defendant made out a note for said sum, payable to the said V. Ballance, which note be paid on or about the date the deed was delivered and the farm paid for.

Plaintiffs' first assignment of error is that the trial court erred in refusing their peremptory instruction that the jury find for the plaintiff, which was offered at the close of plaintiffs' case.

This point we must rule against appellants for, while it is true that the action is based upon a written contract signed by defendant, and it is admitted that defendant was the owner of the land in question, and that a sale of the farm was in fact made to V. G. Ballance, J. P. Ballance, and Leo Wright for $100 per acre, yet the defendant did not admit that Jewett was the producing and inducing cause in the sale, but contended that the purchasers had been procured for him by V. G. Ballance. Under this state of facts, it became necessary for plaintiffs to adduce oral testimony to sustain this controverted issue. That being the case, it matters not if plaintiffs' oral evidence upon this issue stood uncontradicted and unimpeached, yet still such testimony could not be treated as conceded facts.

"It has come to be the fixed rule of law and practice in this state that even though the testimony may be all one way yet where the issue is one which requires proof, and the party upon whom rests the burden depends upon oral testimony, the other party...