McCrary v. Thompson

• Decision Date: 04 March 1907
• Citation: McCrary v. Thompson, 100 S.W. 535, 123 Mo. App. 596 (Mo. App. 1907)
• Parties: McCRARY v. THOMPSON.
• Court: Missouri Court of Appeals

100 S.W. 535

123 Mo. App. 596

McCRARY v. THOMPSON.

Kansas City Court of Appeals. Missouri.

March 4, 1907.

1. CONTRACTS—PERFORMANCE—RIGHT TO COMPENSATION.

Where an architect agreed to pay an agent of a trust company a commission if he would procure a loan from the company to the architect's employer, so as to enable him to build, and he failed to do so, but the employer procured a loan from a third person, the trust company cannot recover from the architect the amount of the promised commission.

2. SAME—VALIDITY—CONSIDERATION.

Where an architect promised to pay to the agent of a trust company a commission if he

procured from it a loan to the architect's employer, so as to enable him to build, but the employer procured a loan elsewhere, and the architect promised to pay a certain lump sum to the agent, the latter promise was without consideration and void.

3. SAME—PUBLIC POLICY.

The promise of an architect to pay the agent of a trust company a commission if he would procure a loan from the company to the architect's employer, so as to enable him to build, was not void as against public policy.

Appeal from Circuit Court, Jackson County; John G. Park, Judge.

Action by George H. McCrary, receiver of the Surety Trust Company, against J. Francis Thompson. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Thad. B. Landon, for appellant. George L. Himes and Piatt, Lea & Wood, for respondent.

BROADDUS, P. J.

The plaintiff sued as the receiver of the Surety Trust Company. The facts as found by the court, a jury having been waived, are in substance as follows: E. G. Sutton, the agent of the trust company, and the defendant, were friends, and had formerly lived in the same town in the state of Kansas, and each was interested in the welfare of the other. On behalf of the trust company, and acting as a real estate broker, Sutton had effected a sale of certain vacant real estate to a Mr. C. H. Beckett, who informed Sutton that his purpose in buying the property was to erect an apartment house, but he was unable to finance the transaction and would have to procure a loan in order to erect the building. Sutton told him his company would make or procure the loan, and asked him whom he proposed to employ as architect. Beckett informed him that he favored a certain man, whereupon Sutton urged him to see defendant, and stated that defendant would do the work better and for a smaller fee than an architect who had been in the city longer. Beckett consented to visit defendant, and Sutton gave him a letter of introduction. He saw defendant, and employed him to draw the plans for and to superintend the erection of the building. Soon thereafter Sutton and defendant met, and defendant told him that if he (Sutton) would secure a loan for Beckett, so that the deal would go through, he would pay Sutton 1½ per cent. of the cost of the building as his compensation; the architect's fee being 3½ per cent. Afterwards it was found that the cost of the building would be $18,000, and Beckett refused to build under the conditions. Sutton as agent of the company failed to procure a loan to Beckett and the latter obtained the necessary funds elsewhere. Defendant reduced his fee to $500, which Beckett paid him. This suit is to recover $175, claimed by the plaintiff to have been promised Sutton after the architect's fee had been reduced to $500. The finding and judgment were for the defendant, from which plaintiff appealed.

The conclusion of the law by the court was: First. "A material and integral part of the agreement between Sutton and defendant was that Sutton should procure the loan. That part of the agreement failed; hence plaintiff is not entitled to recover upon the contract as it stood originally." Second. The contract in...