McCormack v. Henderson

• Decision Date: 08 June 1903
• Parties: E. L. McCORMACK, Respondent, v. ERNEST L. HENDERSON, Appellant
• Court: Kansas Court of Appeals

75 S.W. 171

100 Mo.App. 647

E. L. McCORMACK, Respondent, v. ERNEST L. HENDERSON, Appellant

Court of Appeals of Missouri, Kansas City

June 8, 1903

Appeal from Jackson Circuit Court.--Hon. James Gibson, Judge.

Judgment affirmed.

Grant I. Rosenzweig for appellant.

(1) In the absence of trickery or bad faith, agent must fulfill his contract. Heyden v. Grillo, 26 Mo.App. 289; Blackwell v. Adams, 28 Mo.App. 61; Gieger v Bigger, 29 Mo.App. 421; Love v. Owens, 31 Mo.App. 510; Ramsey v. West, 31 Mo.App. 676; Harwood v. Triplet, 34 Mo.App. 273; Hayden v Grillo, 35 Mo.App. 650; Stinde v. Scharff, 36 Mo.App. 15; Ziedler v. Walker, 41 Mo.App. 121; Harkness v. Briscoe, 47 Mo.App. 196; VanDyke v Walker, 49 Mo.App. 381; Nesbit v. Helser, 49 Mo. 383; Maack v. Schneider, 57 Mo.App. 432; Chipley v. Leathe, 60 Mo.App. 20; Hackman v. Gutwiler, 66 Mo.App. 249; Woolf v. Rosenberg, 67 Mo.App. 403; Crowley v. Sumerville, 70 Mo.App. 376; Page v. Griffin, 71 Mo.App. 524; Warren v. Cram, 71 Mo.App. 638; Campbell v. VanStone, 73 Mo.App. 84; Gillette v. Ridge, 117 Mo. 553. (2) Must produce a purchaser ready and willing. (3) What is not procuring cause. Ramsey v. West, 31 Mo.App. 676; Stinde v. Scharff, 36 Mo.App. 15; Crowley v. Sumerville, 70 Mo.App. 376; Page v. Griffin, 71 Mo.App. 524; Campbell v. VanStone, 73 Mo.App. 84; Cullen v. Bell, 43 Minn. 226; Earp v. Cummins, 54 Pa. St. 394; Whitcomb v. Bacon, 170 Mass. 479; Clark v. Nessler, 50 Ill.App. 550; Blodgett v. Sioux, 63 Ia. 606; Cook v. Forest, 116 Ala. 395; McGuyer v. Carlson, 61 Ill.App. 295; Mears v. Stone, 44 Ill.App. 444; Bailey v. Smith, 103 Ala. 641; Sibald v. Bethlehem, 83 N.Y. 378; Ward v. Fletcher, 124 Mass. 224; Wylie v. Marine Bank, 61 N.Y. 415; Francis v. Eddy, 49 Minn. 447; Glasscock v. Van Fleet, 100 Tenn. 603. (4) Instructions must not leave out the conditions and terms of the contract. Link v. Westerman, 80 Mo.App. 595; Craycroft v. Walker, 26 Mo.App. 469; Hofstadt v. Diggs, 50 Mo.App. 240; May v. Crawford, 150 Mo. 528. (5) Error to submit "abandonment." Link v. Westerman, 80 Mo.App. 592, citing, 75 Mo. 95; 83 Mo. 73; 42 Mo.App. 482. (6) Disclosure of customer's name is indispensable. Heydon v. Grillo, 35 Mo.App. 650; Stinde v. Scharff, 36 Mo.App. 15; Blodgett v. Sioux, 63 Ia. 606; Mears v. Stone, 44 Ill.App. 444; Wylie v. Marine Bank, 61 N.Y. 415; Baars v. Hyland, 65 Minn. 150; Sievers v. Griffin, 14 Ill.App. 63; Gerding v. Haskins, 141 N.Y. 514; Tinges v. Moale, 25 Md. 480.

H. L. McCune for respondent.

(1) Appellant having consummated a sale to respondent's purchaser, the readiness or willingness of the purchaser to buy is no longer an open question. (2) Where real estate has been placed in the hands of an agent for sale and a sale is brought about by his exertions, he is entitled to compensation, even though the principal has conducted the final transfer personally or through another agent, at a lower price than the first agent was authorized to make. Wright & Orrison v. Brown, 68 Mo.App. 577; Stine v. Blesch, 42 Mo.App. 578; Bell v. Kaiser, 50 Mo. 150; Tyler v. Parr, 52 Mo. 249; Grether v. McCormack, 79 Mo.App. 325; Timberman v. Craddock, 70 Mo. 638; Wetzell v. Wagoner, 41 Mo.App. 509; Brenan v. Roach, 47 Mo.App. 290; Henderson v. Mace, 64 Mo.App. 393; Millan v. Porter, 31 Mo.App. 563; Bass v. Jacobs, 63 Mo.App. 393; Crone v. Trust Co., 85 Mo.App. 601; Fisher v. Realty Co., 159 Mo. 562; Hogan v. Slade, (Mo. App.) 71 S.W. 1104; Cuniff v. Hausman, (Mo. App.) 71 S.W. 368. (3) The respondent was the procuring cause of the negotiations which resulted in a sale. Where a sale is brought about through the exertions of an agent he is the procuring cause. Wright v. Brown, 68 Mo.App. 577; Wetzell v. Wagoner, 41 Mo.App. 516; Tyler v. Parr, 52 Mo. 250. (4) It is immaterial whether respondent disclosed the name of his purchaser to appellant prior to the time when the sale was closed. Millan v. Porter, 31 Mo.App. 563; Tyler v. Parr, 52 Mo. 250; Goffe v. Gibson, 18 Mo.App. 4.

OPINION

BROADDUS, J.

This is a suit by plaintiff to recover of defendant commission for the sale by him as a real estate agent of a certain lot and dwelling house thereon situate, in Kansas City, Missouri, belonging to the defendant.

The evidence tended to show that plaintiff having learned that defendant wished to sell said property called on defendant in the month of November, 1901, to secure the agency to sell it; that he was told by defendant that other agents were trying to sell it, but that if plaintiff would sell it or produce a customer, he would pay him a commission; that defendant priced the property at $ 20,000, but stated that he would take considerably less; that the commission was to be the usual one of two and one-half per cent on the amount of the sale; that plaintiff at once advertised the property for sale in the Kansas City Star and in the Journal and called on several persons whom he knew to be in the market for the purpose of purchasing homes, and tried to sell to them; that learning that one Robert McClintock had sold his house on or about February 17, 1902, he called on him and gave him a description of defendant's property, told him the price, and asked him if he would not go and look at it, which he agreed to do; that McClintock's wife and daughter had previously seen the advertisement of the property in the newspapers but that he had never seen it himself; that plaintiff went to defendant's office to get the key to the house at which time he told him that he had got a purchaser and informed him that it was McClintock; that on the next day he met McClintock with his wife and daughter at the house and showed them the property, at which time plaintiff offered the property to McClintock for $ 19,000; that McClintock again went to see the property; that after having seen it he made an offer of $ 17,000 for it, which offer plaintiff reported to defendant, when defendant said it was not enough; that on the Saturday following the plaintiff called on McClintock again when the latter made some objection to the barn, but said he would think it over and asked plaintiff for his card and told him that he might conclude to raise his offer, and that if he bought the property he would buy it through plaintiff; that plaintiff reported the interview to defendant who told him not to press the sale too hard, as McClintock might think they were too anxious to sell; that plaintiff called upon McClintock several times and at one time gave him a picture of the house; that on one of these occasions McClintock was not at home, but that he left his card on which he had written that he was going out of town for a few days; that he left town on Monday and returned on Friday; that during his absence one C. F. McGregor, a friend of McClintock's, went to the latter's restaurant for lunch and was told about the property by McClintock, but that defendant was asking too much for it; that McGregor went to defendant at McClintock's request, and as his representative; that McClintock had already decided that he wanted the house, and that McGregor's mission to defendant was only for the purpose of getting the price; that McGregor submitted to defendant the highest price McClintock would pay; that the negotiation finally resulted in defendant fixing the price at $ 17,500, which McClintock agreed to pay, and it was sold to him at that price. The sale was effected during plaintiff's absence from the city.

The evidence further developed the fact that McClintock took offense at some language used by plaintiff to him, for which reason he was determined not to buy through his agency. The defendant's evidence tended to contradict that given, but as the errors claimed are those of law, the finding of the jury upon the facts is not a proper matter of inquiry here. The finding was for the plaintiff and defendant appealed.

Admitting the full force of the testimony, the defendant contends that the plaintiff did not make out a case sufficient to entitle him to go to the jury.

Instructions numbered one and two, given by the court in behalf of plaintiff, stated the law of the case. They are as follows:

"1. If the jury find from the evidence that plaintiff's agency was the procuring cause of the negotiations between defendant and McClintock which finally resulted in the sale of defendant's property to McClintock, then the plaintiff is entitled to recover, even though the jury may further find that the negotiations were consummated through another agent, and even though said other agent has been paid by defendant.

"2. If you believe that McGregor went to Henderson as McClintock's representative and concluded a sale at a lower price than McClintock had offered through plaintiff, this fact would not itself deprive plaintiff of his right to recover, if you believe from the evidence and instructions given you that plaintiff is entitled to recover."

The decisions in this State are numerous to the effect that, "where real estate has been placed in the hands of an agent for sale and he is the procuring cause, he is entitled to his commission." Wright & Orrison v. Brown, 68 Mo.App. 577; Stinde v. Blesch, 42 Mo.App. 578; Bell v. Kaiser, 50 Mo. 150; Tyler v. Parr, 52 Mo. 249. And these same authorities hold that he is entitled to his commission though the sale was consummated through direct dealings between the principal and the purchaser. We have only cited a few of the many decisions in Missouri to that effect.

The evidence quoted certainly tends to show that the efforts of the plaintiff was the procuring cause of the sale notwithstanding defendant consummated it himself with McGregor, who was, in fact, the agent of the purchaser. If it was through plaintiff's efforts, of which there can be no doubt, that McClintock came to the conclusion to...