Mead v. Arnold

• Decision Date: 25 May 1908
• Citation: 110 S.W. 656,131 Mo.App. 214
• Parties: HENRY C. MEAD, Appellant, v. WILLIS B. ARNOLD, Respondent
• Court: Kansas Court of Appeals

110 S.W. 656

131 Mo.App. 214

HENRY C. MEAD, Appellant, v. WILLIS B. ARNOLD, Respondent

Court of Appeals of Missouri, Kansas City

May 25, 1908

Appeal from Saline Circuit Court.--Hon. Samuel C. Davis, Judge.

AFFIRMED.

Judgment affirmed.

Com. P Storts, Virgil V. Huff and Alf. F. Rector for appellant.

(1) The case was properly tried in the circuit court. The evidence showed that the sale of the farm was not made by the plaintiff or through his efforts. The question as to whether or not the plaintiff was the procuring cause of said sale being made was submitted to the jury, under proper instructions, and the finding was against the plaintiff, and such finding is conclusive. There was no interplea, and the case of Hartsook v. Chrissman, 114 Mo.App. 558, does not apply. Gamble v. Grether, 108 Mo.App. 340. (2) Instruction numbered one given for the defendant was proper and is a correct statement of the law, and was based on the evidence. Stinde v. Blesch, 42 Mo.App. 582, 19 Cyc 283; McGuire v. Carlson, 61 Ill.App. 297; Glascock v. Vanfleet, 100 Tenn. 603. (3) Before the appellant can claim commissions he must have produced a purchaser in the sense that he shall be the inducing or procuring cause of the sale. It was appellant's duty to show by the evidence that his acts brought about the sale. This question was found against the appellant by the jury under proper instructions and is conclusive. Ramsey v West, 31 Mo.App. 687; Crowley v. Sommerville, 70 Mo.App. 376; Gamble v. Grether, 108 Mo.App. 340; Pollard v. Banks, 67 Mo.App. 187. (4) Plaintiff complains that the statements made by Leimkuhler on the day of the sale at the Arnold house were not competent evidence, and that it was error to admit them. Plaintiff on his direct examination was asked to give the conversation he had with Arnold over the phone on the day of the sale, which he did. This brought out the Leimkuhler statements, and all that occurred. If this was error, it was committed by the plaintiff. (5) It was proper to show by the statement of the purchaser his state of mind regarding the effect the efforts of Mead had on him in making the purchase. Folks v. Barnett, 47 Mo.App. 564; 19 Cyc. 283, note 59; McGuire v. Carlson, 61 Ill.App. 295; Hunn v. Ashton, 96 N.W. 745; Goldsmith v. Cook, 14 N.Y.S. 878.

W. M. Williams, R. M. Reynolds and D. D. Duggins for respondent.

(1) The defendant's original answer, in the nature of an interplea, had been stricken out, and it was prejudicial error to claim on the trial that they were entitled to the commission. Hartsook v. Chrissman, 114 Mo.App. 558. The defendant could have, by his acts and contracts, been liable to both the plaintiff and the Haines Brothers. The only question in the case was, did the plaintiff find the purchaser, or was he the procuring cause of the sale. (2) This is a suit by plaintiff against the defendant for commissions for finding a purchaser for defendant's $ 46,000 farm; and if the plaintiff found the purchaser, or was the procuring cause of the sale, that is, finds a buyer, then he was entitled to a verdict for the commission. Wright v. Brown, 68 Mo.App. 582. (5) Instruction numbered one, given for the defendant, is clearly erroneous, confusing and misleading, for the reason that it injects into the trial of the cause a case of Haines Brothers v. Arnold, and tells the jury that if the sale was made by and through the efforts of Haines Brothers, then the plaintiff could not recover. This instruction directly injects the theory of an interplea into this case. Hartsook v. Chrissman, 114 Mo.App. 558; Wright v. Brown, 68 Mo.App. 582; Brennan v. Roach, 47 Mo.App. 297. (4) Instruction numbered two, asked for and given in behalf of defendant, is erroneous in this, that it singles out certain facts or portions of the evidence, and calls the jury's attention to these facts, and tells the jury under these conditions the plaintiff could not recover. (5) The court erred in permitting the defendant to testify to conversations he had with Charles Leimkuhler in the absence of the plaintiff.

OPINION

JOHNSON, J.

--Action by a real estate broker to recover a commission alleged to be due him on account of the sale of a farm owned by defendant. Verdict and judgment were for defendant and the cause is here on the appeal of plaintiff, who argues that prejudicial errors were committed against him by the trial court in the admission of evidence and in the instruction of the jury.

At the times mentioned in the evidence, plaintiff was engaged in the business of real estate agent at Slater in Saline county. Defendant was the owner and occupant of an exceptionally well improved farm of 466 1-2 acres situated about four and a half miles northwest of that city. In 1904, defendant requested plaintiff to find him a purchaser at $ 100 per acre and agreed to pay him a commission of two per cent should a sale be made to a purchaser procured by him on the terms proposed. Plaintiff listed the place and advertised it to some extent but did not succeed in finding a person who might buy it until August 4, 1905. On that day, Charles Leimkuhler, a farmer living near Osage, came to plaintiff at Slater and announced his purpose of buying a farm in that vicinity for a home. He said he had $ 38,000 in money, which he was willing to spend in the contemplated purchase and, if necessary, he would pay more than that sum for a farm he liked, by going into debt for the remainder of the purchase price. Plaintiff then showed Mr. Leimkuhler several farms south of Slater, but none of them pleased him and, on their return, plaintiff stated he had some farms north of town which he would like to show but that prices there were somewhat higher. The next day the parties met on the street in Slater and Mr. Leimkuhler asked for information respecting the farms north of town and was informed by plaintiff that he had the very place that would suit him. Plaintiff then described minutely defendant's farm and its improvements, whereupon Mr. Leimkuhler remarked (so plaintiff testified): "That sounds good to me; there are not many like that." Plaintiff offered to show the place at once, but Mr. Leimkuhler said, "I have not time. I will be back here in two weeks or less. I will go with you to look at that farm and if it suits me I will buy it." Further, plaintiff testified: "He (Leimkuhler) said he was going to Alma, I thought he said Lafayette county, and from there home. He told me he had not completed the sale of his half interest in the McClelland farm; that he and Henry Leimkuhler owned that together and Henry had made a price on it and that he would probably give a little more, that he was going to sell it to him and probably he would get a little more for it. . . . There were 624 acres, his half interest would be 312 acres."

Plaintiff did not inform defendant of what had occurred between him and his prospective customer, being fearful that "when there was $ 900 involved somebody might slip in and beat you out of it." Ignorant of the fact that plaintiff had a customer in hand, defendant, a week later, listed the farm with Haines Brothers, real estate agents at Arrow Rock, another town in Saline county. In the afternoon of August 15th, Charles and Henry Leimkuhler accompanied by the Haines Brothers appeared at defendant's farm, looked it over, and the next morning decided to buy it at $ 100 per acre. A conveyancer was procured from Slater, who came out and prepared the necessary papers. The deed was made to Henry Leimkuhler on the request of Charles who explained that he (Charles) had bought Henry's interest in the McClelland farm and that Henry had concluded to buy another farm for himself. While the negotiations were in progress, Charles remarked that he believed the farm was one mentioned to him by plaintiff, whereupon defendant, to avoid the possibility of being compelled to pay a double commission, refused to proceed with the transaction unless Haines Brothers would guarantee him against liability to plaintiff. Accordingly, such guaranty was given and defendant paid the commission for the sale to Haines Brothers who gave $ 200 of the money thus received to Charles as a present.

On behalf of defendant, the evidence tends to show that Haines Brothers had conducted previous dealings with the Leimkuhlers, were tenants of a farm they owned and were on very friendly terms with them, and that the Leimkuhlers came uninvited to Arrow Rock for the purpose of looking at land near Slater with a view to purchasing a farm. W. W. Haines testified in part as follows:

"He (Charles) came to my house, he and his cousin, Henry Leimkuhler, and stayed all night on the night of the 14th. That morning I showed them a farm close to Arrow Rock. They said it didn't suit them and asked me if I had any other farms for sale. I told them that I had. I had a farm belonging to Willis B. Arnold northwest of Slater. It was a fine farm and all in grass excepting 120 acres. It has an $ 8,000 house, well fenced, good windmill, steel tanks and reservoir; and we went on then to the other farm known as the McClelland farm and ate our dinner and they agreed there whichever one was satisfied that the other would buy the other one out of the McClelland farm. They owned it in partnership. After they got in the surrey and started on, one of them asked where we were going. I said we were going to see the Arnold farm and described it again. They said 'all right, we will go.' I went around by Orearville through the western part of Slater out to Mr. Arnold's...