McCormick v. Obanion

• Decision Date: 03 February 1913
• Citation: 153 S.W. 267,168 Mo.App. 606
• Parties: C. C. McCORMICK, Respondent, v. J. E. OBANION, Appellant
• Court: Missouri Court of Appeals

153 S.W. 267

168 Mo.App. 606

C. C. McCORMICK, Respondent, v. J. E. OBANION, Appellant

Court of Appeals of Missouri, Springfield

February 3, 1913

Appeal from Lawrence Circuit Court.--Hon. Carr McNatt, Judge.

AFFIRMED.

Judgment affirmed.

W. B Skinner, McNatt & McNatt for appellant.

(1) Where by the contract a person agrees to sell property for a certain sum of money, nothing short of cash payment at the completion of the contract is compliance with the terms. Freight Co. v. Standard, 44 Mo. 71. (2) If payment is to be made in other than money, it must be by agreement and pleaded, before evidence of the same be introduced. Moore v. Renick, 95 Mo.App. 202. (3) If time of payment is waived or extended, such agreement of extension or waiver must be pleaded, before any evidence of same can be introduced. Lanitz v. King, 93 Mo. 519; Larrow v. Bozarth, 68 Mo.App. 406. (4) Where there has not been a compliance of the contract, no action can be brought thereon. Veach v. Norman, 109 Mo.App. 387; Freeman v. Aylor, 62 Mo.App. 613. (5) Cannot plead one contract and show performance of another. Tausig v Merc. Town Co., 124 Mo.App. 220; Koontz v. Car Co., 203 Mo. 259. (6) The fact that the owner consented to sell the property on different terms from that originally authorized to sell, even though the sale was procured by the broker, is not of itself sufficient acceptance of performance of the broker's obligation, to authorize a recovery on the contract. Reiger v. Fitzpatrick, 29 Mo.App. 421; Simmons v. Oneth, 140 Mo.App. 273; Cosgrove v Leonard Merc. Co., 175 Mo. 110. (7) An agent authorized to sell real estate on cash payment is not complying with his authority if he sells on time, and it would be substantial variance and the agent could not recover. Harwood v. Tripplett, 34 Mo.App. 273; Jepson v. Marohn, 21 L. R. A. (N. S.) (S. D.) 935. (8) Where a broker sells property on different terms than the one originally authorized by the owner of property, it must be pleaded and proven, that the owner accepted the modified terms, as a compliance of the contract between the broker and the owner, to recover the stipulated amount of commissions. Blackwell v. Adams, 28 Mo.App. 62.

H. H. Bloss for respondent.

(1) If property is placed in the hands of a real estate dealer, he is entitled to his commission, if he brings about the sale by his exertion, or if he introduces the purchaser, or gives his name, whereby the sale is perfected by the principal, even though the owner vary the terms from the first negotiations in order to affect a sale. Wetzell & Griffith v. Wagoner 41 Mo.App. 516; Larow v. Bozarth, 68 Mo.App. 406; Stinde v. Blesch, 42 Mo.App. 578; Gretcher v. McCormick, 79 Mo.App. 325; Crone v. Trust Co., 85 Mo.App. 607; Jones v. Berry, 37 Mo.App. 125, 128; Henderson & Jones v. Mace, 64 Mo.App. 393; Baucamp v. Higgins, 20 Mo.App. 514; Simmons v. Oneth, 140 Mo.App. 273; Sallee v. McMurry, 113 Mo.App. 253. (2) It is also held that in cases of executed sales, the broker is entitled to his commission based on the original contract of employment, where the owner himself varies the terms of the sale, at which he had authorized the broker to make it. The recovery in such cases is on the original contract. Wetzell & Griffith v. Wagoner, 41 Mo.App. 510; Henderson v. Jones & Mace, 64 Mo.App. 393; and other authorities above cited, under point one. (3) The principal cannot recover of the surety until he pays the surety debt. Herne v. Keath, 63 Mo. 84; Huse v. Ames, 104 Mo. 91.

OPINION

STURGIS, J.

--This is an action by the plaintiff as a real estate broker for his commission for selling the defendant's farm. The plaintiff recovered in the trial court and the case is here on appeal.

The petition, after stating that plaintiff was engaged in the real estate business and that defendant was the owner of the farm in question, charges as follows:

"That on the ___ day of June, 1911, he entered into a contract with the defendant, not in writing, whereby it was agreed that if the plaintiff would procure a purchaser for the defendant's farm, which was located about four miles south of the city of Aurora, in Barry county, Missouri, that he, the defendant, would pay the plaintiff all that said farm sold for over and above the sum of $ 6000.

"That after the making of said contract, the plaintiff immediately went to work to secure a purchaser for said farm and who purchased the same at the agreed price and sum of $ 6800 whereby there became due from the defendant to this plaintiff the sum of eight hundred dollars which sum is now due and owing by the defendant to the plaintiff, and payment thereof has been refused by the defendant though he has been requested to pay the same to the plaintiff."

The facts in regard to the transaction are about these: The plaintiff was engaged in the real estate business at Aurora, Missouri, and the defendant was the owner of a farm some three or four miles south of that town in Barry county. The plaintiff's version of the contract with reference to the sale of the land is that he met the defendant in Aurora, Missouri, and that defendant listed the farm with him for sale at $ 6000. After listing the property plaintiff asked defendant about the commission and defendant said that he would not pay a commission but would give plaintiff all over $ 6000 he could sell the farm for. With reference to this matter the defendant testified that, on meeting the plaintiff at Aurora, plaintiff asked him to give him a chance to sell his farm and defendant replied, "All right, sell it. I will give you a commission." Plaintiff then asked, "What is the least money it will take to buy your farm?" Defendant replied, "I will take $ 6000 clear cash money for the place." . . . "I meant for him to sell the place and leave me $ 6000 clear cash after the expenses were all paid."

After this arrangement was made the plaintiff took one Webbena, whose home was in Iowa, and showed him defendant's farm with the view of selling it to him. They met the defendant at his farm and with reference to what then took place the defendant testified: "It went on then until he brought a buyer out there for me; brought Mr. Webbena and his wife, and looked over the place, and he praised the place up to them pretty high, and they could not agree for some time, and they did finally agree, so they told me, and agreed on $ 6800 in notes; three years after, some of them, one of them to be paid each year. Then he (plaintiff) called me to one side and said, 'We will sell your place that way.' I studied a few minutes and I considered this is necessary interest, and I thought this $ 800 will be his commission."

Defendant further explained that he understood that the $ 6800 was to be paid, $ 100 cash, $ 400 on the 15th day of November, and $ 2800 on January 12 following; and that at the time of this last payment he was to make a deed to the farm, deliver possession of it and take notes, secured by deed of trust, for the balance of the purchase money. On further examination defendant admitted that he agreed to sell his farm in this way and on these terms.

By agreement between the parties they met at an office in Aurora that same evening, when and where they drew up and signed the following contract:

"Aurora, Mo., June Seventh, 1911.

"This evidences a contract made and entered into the day and year above mentioned, by and between J. E. Obanion, of Barry county, Mo., party of the first part, and Fred Webbena, Martelle, Iowa, party of the second part. Which provides as follows to-wit:

"For and in consideration of the sum of $ 6800 (sixty-eight hundred dollars), to be paid by the party of the second part, as hereinafter provided. Said first party hereby agrees to bargain, sell and convey to, and hereby obligates himself to bargain, sell and convey to, said second party the following described real estate being situated in Barry county, Mo., to-wit: The north half of the southeast quarter, and the southwest quarter of the northeast quarter of section number one, township number twenty-five, and range number twenty-six; also the northwest quarter of the southwest quarter of section six, township twenty-five, R. 25 west, of the fifth principal meridian, all in Barry county, Mo. And in consideration of the obligation on the part of the first party the said second party hereby obligates himself to pay said first party the sum of sixty-eight hundred dollars, in manner and form as follows, to-wit: One hundred dollars cash upon the execution of this contract, four hundred dollars, to be paid November fifteenth, 1911, for which a promissory note is to be made, twenty-eight hundred dollars, January the twelfth, 1912, at which latter date the party of the first part is to convey said land by good and sufficient warranty deed to said second party and to deliver to him the possession of said real estate. And the balance of said purchase money being $ 3500 is to be evidenced by four promissory notes, to be executed by said second party in the respective sums of $ 875. The first of said notes to fall due, November 15, 1912, and one each year thereafter, all of said notes to bear interest at the rate of 6 per cent per annum, said interest to be paid annually, and the said notes to be secured by a trust deed in the usual Missouri form on the real estate conveyed, said notes and deeds to be executed at the time of said warranty deed.

"In evidence of the foregoing agreement the said parties have hereunto subscribed their names, the day and year first aforesaid.

"J. E. OBANION (Seal).

"FRED WEBBENA (Seal).

"Witness:

"C. C. McCORMICK.

"A. M. DAVIS."

On the making of this contract it seems that the $ 100 in cash was paid and the note executed for the $ 400 to be paid ...