Maddux v. St. Louis Union Trust Company

• Decision Date: 08 December 1914
• Citation: 171 S.W. 669,186 Mo.App. 138
• Parties: G. A. MADDUX, Appellant, v. ST. LOUIS UNION TRUST COMPANY, Respondent
• Court: Missouri Court of Appeals

171 S.W. 669

186 Mo.App. 138

G. A. MADDUX, Appellant, v. ST. LOUIS UNION TRUST COMPANY, Respondent

Court of Appeals of Missouri, St. Louis

December 8, 1914

Appeal from St. Louis City Circuit Court.--Hon. Irvin V. Barth Judge.

Judgment reversed and cause remanded. (with directions).

Chas B. Stark, for appellant; Parks & Bell and C. F. Schneider of counsel.

(1) It is well-settled law in this State that a real estate broker performs his duty, and is entitled to his commissions, when a purchaser is introduced who is ready, willing and able to buy on the terms authorized by the principal. Gelatt v Ridge, 117 Mo. 553; Finley v. Dyer, 79 Mo.App. 604; Hayden v. Grillo, 42 Mo.App. 1, s. c., 35 Mo.App. 647; Bailey v. Chapman, 41 Mo. 536; Love v. Owens, 31 Mo.App. 501; Collins v. Fowler, 8 Mo.App. 588; Cheatham v. Yarbrough, 90 Tenn. 77. (2) The principal cannot relieve himself from liability for commissions by a refusal to consummate the sale. Bailey v. Chapman, 41 Mo. 536; Hayden v. Grillo, 35 Mo.App. 647; Glentworth v. Luther, 21 Barb. 145; Kock v. Emmerling, 22 How. (U.S.) 69. (3) Nor because of a defect in his title. Christensen v. Wooley, 41 Mo.App. 53; Collins v. Fowler, 8 Mo.App. 588; Fisher v. Drewest, 7 Rep. 351; Love v. Owens, 31 Mo.App. 501; Gonzales v. Broad, 57 Cal. 224; Cavender v. Waddington, 5 Mo.App. 457; Cheatham v. Yarbrough, 90 Tenn. 77; Mechem Agency, secs. 966, 967; 2 Addison Contr., sec. 931; 2 Am. & Eng. Ency. Law, 578, 581; McGavock v. Woodlief, 20 How. (U.S.) 221; Kock v. Emmerling, 22 How. (U.S.) 69; Frazier v. Wycroff, 63 N.Y. 448; Cook v. Fish, 12 Gray, 493; Vinton v. Baldwin, 88 Ind. 104; Gilchrist v. Clarke, 2 Pickle, 585; Parker v. Walker, 2 Pickle, 569; Roberts v. Kimmons, 65 Miss. 332. (4) The condition prescribed by the purchaser that a good title should be made to her was merely what the law implied without incorporating it in her contract and did not relieve the vendors from liability for commissions. Roberts v. Kimmons, 65 Miss. 332; Folliard v. Wallace, 2 Johns. 395; Middleton v. Findla, 25 Col. 76; Hamlin v. Schulte, 34 Minn. 534; Gauther v. West, 45 Minn. 192; Crosto v. White, 3 N.Y.S. 682; Hally v. Gosling, 3 E. D. Smith, 262; Birmingham Co. v. Thompson, 86 Ala. 146. (5) The plaintiff's case having been fully established by documentary evidence and by the deposition of the sole witness in the case it was the duty of the court to give the peremptory instruction for a verdict as prayed by the plaintiff. Bank v. Hainline, 67 Mo.App. 483; Morgan v. Durfee, 69 Mo. 469; Commissioners v. Clark, 94 U.S. 278; Connor v. Giles, 76 Me. 132; 2 Thompson on Trials, sec. 2249; Proffatt Jury Trial, secs. 351, 352, 354 and cases cited.

Henry B. Davis, Charles Erd and Carlisle Durfee for respondent.

(1) A real estate agent or broker cannot represent both the buyer and seller in the same transaction, unless with the implied or express assent of the parties represented. And either principal, without showing injury to himself, may avoid a contract made by a dual agent, without his knowledge of such dual agency. Lawson on Contracts (1 Ed.), sec. 181; Corder v. O'Neil, 207 Mo. 632; Connor v. Black, 119 Mo. 126; Chapman v. Currie, 51 Mo.App. 43; Winter v. Carey, 127 Mo.App. 601; Witte v. Storm, 236 Mo. 470. (2) And either principal may avoid the contract, to the extent of refusing to reimburse the agent for any expenditures which he may have been authorized to make in the course of his negotiations for a sale of the property. 31 Cyc. pp. 1539-1540; R. R. v. Morris, 10 O. Cir. Ct. 502; Williamson v. Lumber Co., 43 Ore. 337.

NORTONI, J. Reynolds, P. J., and Allen, J., concur.

OPINION

NORTONI, J.

This is a suit by a real estate agent for his commissions. The finding and judgment were for defendant and plaintiff prosecutes the appeal.

It appears that plaintiff is a real estate agent, doing business at Nashville, Tennessee. The suit was originally instituted against Matilda J. Childress and her husband, Thomas B. Childress, for commissions said to have been earned by the agent in finding a purchaser who was ready and able and willing to buy certain real estate owned by Matilda J. Childress in Nashville. After the suit was instituted and before the trial, both defendants departed this life at St. Louis, Missouri, where they resided. The real estate was owned by Matilda J. Childress alone, and, as before said, situate at Nashville. Her husband, Thomas B. Childress, was, therefore, but a nominal party defendant. As to him the suit abated at his death, but it was revived against the estate of Matilda J. Childress and the present defendant, St. Louis Union Trust Company, as executor of her estate, substituted as a party defendant in her stead.

It appears that Matilda J. Childress desired to sell her property situate on Cherry street in Nashville, Tennessee, at the price of $ 50,000. Plaintiff came to St. Louis on May 28, 1909, visited Mrs. Childress and her husband, and arranged with them to represent her in making the sale for a commission of $ 1000. A written contract was entered into by Mrs. Childress and her husband on that date, whereby plaintiff was authorized to sell the property for $ 50,000. However, it was agreed in the contract of agency that Mrs. Childress would borrow $ 22,000 on the property from the Northwestern Mutual Life Insurance Company at five per cent interest, which loan the purchaser should assume and also pay to Mrs. Childress $ 18,000 in cash and give a second mortgage on the property to Mrs. Childress for $ 10,000, to be represented by two separate notes bearing six per cent interest. It was further stipulated, too, that Mrs. Childress would furnish an abstract showing good title to the property, which should be delivered to the purchaser.

On the following day, May 29, 1909, plaintiff effected a sale of the property to Mrs. Annie Simon of Nashville, Tennessee, who appears to have been a lady of means and amply able to buy. Mrs. Simon agreed in writing to take the property at the price of $ 50,000 and on the terms prescribed in plaintiff's contract of agency, provided the title thereto was found to be good. The case concedes that Mrs. Childress and her husband executed the contract of agency to plaintiff above stated and that he effected a sale of the property through finding a purchaser in the person of Mrs. Simon, who was ready and able and willing to buy on the terms prescribed. But it appears the sale was not finally consummated in point of fact, for the reason that the title to a portion of the property was found to be defective and the owners failed to correct it. So much appears from the written contract in evidence and admissions and stipulations of fact introduced at the trial. It is agreed, too, that plaintiff expended, by and with the authority of Mrs. Childress and her husband, $ 49.75 in procuring an abstract of title to the property and that this amount has not been repaid to him, though it was expended for the use and at the instance of the Childresses.

There can be no doubt that these facts are sufficient to authorize a recovery for plaintiff, unless some sufficient and valid reason apart therefrom appears to defeat his right. [See Hayden v. Grillo, 35 Mo.App. 647.] Here the owner of the property, plaintiff's principal, agreed in writing to furnish a good and sufficient title, but aside from this the obligation to do so rested upon her, in so far as the plaintiff's right to recover his commissions is concerned, for he fully performed on finding a purchaser ready and able and willing to buy on the terms prescribed in his commission of authority. [See Christensen v. Wooley, 41 Mo.App. 53, 61; Collins v. Fowler, 8 Mo.App. 588.]

But the court referred the case to the jury as if there were evidence tending to prove that plaintiff performed a dual agency and thus forfeited his right to recover, because, forsooth, he represented both the seller and the purchaser at the same time. The jury found the issue for defendant on this theory. Obviously one may not, with entire fidelity, serve two masters, representing adverse interests, in ordinary commercial transactions, at the same time, and because of this the salutary rule obtains that if a dual agency appears, without the consent of the principal, the agent forfeits his commission and may not recover. [See Corder v. O'Neill, 207 Mo. 632, 645, 646, 647, 106 S.W. 10; Connor v. Black, 119 Mo. 126, 24 S.W. 184; Neuman v. Friedman, 156 Mo.App. 142, 136 S.W. 251.] But the doctrine proceeds on the ground of fraud and bad faith. Obviously, therefore, such conduct on the part of an agent may not be presumed, but must be found from the facts of the case, and such facts must be sufficient to constitute substantial evidence on the issue thus made. After reading all of the evidence introduced at the trial several times, we are persuaded that it is wholly insufficient to support the finding of bad faith in that plaintiff represented both the purchaser and the seller of the property at the time. There is no admission nor stipulation tending to show that plaintiff represented Mrs. Simon in any way, but, on the contrary, it appears he represented the Childresses in making the sale. The only evidence said to suggest that plaintiff occupied a position of dual agency is that of Mrs. Simon, and we copy it in full. Indeed, Mrs. Simon is the only witness who testified in the case and her evidence in full is as follows:

"Q. Mrs. Simon, please state your full name, age and present place of residence? A. Annie Simon; 56 years; 112 Vauxhall street, Nashville, Tenn.

Q. If you at any time endeavored to purchase the property owned by defendants, Matilda J. and Thos. B. Childress, on Cherry street in the city of Nashville, state with whom your...