McCrosky v. Murray

• Decision Date: 07 February 1910
• Citation: 142 Mo. App. 133,125 S.W. 226
• Parties: McCROSKY v. MURRAY.
• Court: Missouri Court of Appeals

125 S.W. 226

142 Mo. App. 133

McCROSKY v. MURRAY.

Springfield Court of Appeals. Missouri.

February 7, 1910.

1. TRIAL (§ 141) — DIRECTION OF VERDICT — WHEN AUTHORIZED.

Where an issue of fact is controverted by the pleadings, and plaintiff, having the burden of proof, relies on uncontradicted oral testimony, defendant, though offering no evidence, is entitled to have the jury, or the court pass on the issue.

2. TRIAL (§§ 139, 140) — DIRECTION OF VERDICT — WHEN AUTHORIZED.

It is the province of the jury to determine the credibility of the witnesses and the weight of their testimony.

3. BROKERS (§ 88) — COMMISSIONS — ACTIONS — EVIDENCE.

Evidence in an action by broker for commissions held to require the submission of the issues to the jury.

Gray, J., dissenting.

Appeal from Circuit Court, Greene County; James T. Neville, Judge.

Action by A. W. McCrosky against L. H. Murray. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

E. D. Merritt, for appellant. Perry T. Allen, for respondent.

NIXON, P. J.

This was an action commenced before a justice of the peace to recover a commission of $50 which the plaintiff claimed was due him from the defendant for procuring a purchaser for real property owned by the defendant in Springfield, Mo. The plaintiff prevailed in the justice's court, and the defendant took an appeal to the circuit court, where, on trial de novo, the plaintiff again obtained judgment for $50. At the conclusion of the evidence in the case, the court gave the jury a peremptory instruction to find the issues for the plaintiff, and thereupon the jury returned a verdict for the plaintiff for the sum of $50, and judgment was entered thereon as stated above. The defendant has perfected his appeal to this court.

The plaintiff is a real estate dealer. At the trial, the plaintiff introduced himself as a witness and produced other evidence tending to support the issues in his behalf.

The defendant introduced himself and other witnesses in his behalf. The defendant's statement of his employment of the plaintiff is that the plaintiff came to him and said: "I think I have a prospective purchaser for your lot." His testimony continues: "He asked me my price. I told him that I wanted it to net me $1,200, and $50 would go to him if he made the sale and $32 was figured for an abstract. He said to me: `Will you give me two or three days in which to find out whether I can make the sale? I rather think I can.' I said, `Yes.' I said: `I never put my property on the list around town with anybody; but, if a man brings me a customer or a purchaser, I am always ready to pay him for his labor.' He told me he could find out in two or three days. I said, `All right,' and we parted."

The plaintiff's version of the contract was that he told the defendant that he had a prospective purchaser for the lot. His testimony continues: "They have requested me to see the least dollar in cash you would take for it. He put the price at $1,282. `Now,' he says, `Mac, if they don't want it at that price, don't multiply words with them. I will take that for it and give you $50 for selling it.'"

The defendant's evidence further tended to show that on the next day one R. H. Porter, another real estate dealer, called the defendant over the telephone and asked him to put a price on the lot, as he had a prospective purchaser, which defendant refused to do, telling him that McCrosky had the right to sell the lot provided he could sell it in two or three days, and that, if McCrosky failed, then he (Porter) could have a chance. The next day Porter met the defendant and again asked him to put a price on the lot, which defendant again declined to do and refused to place it in Porter's hands for sale for the reason that McCrosky had not yet reported to him. Shortly after this McCrosky came to the defendant, making this statement, according to defendant's testimony: "Mr....