Mercantile Trust Company v. Lamar
| Decision Date | 03 May 1910 |
| Citation | 128 S.W. 20,148 Mo.App. 353 |
| Parties | MERCANTILE TRUST COMPANY, Respondent, v. WILLIAM R. LAMAR, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Moses N. Sale Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Joseph A. Wright for appellant.
(1) An exclusive agency does not deprive the owner of the right to find a purchaser or obligate him to pay a commission, if he sells his own property without the aid of the broker. Packing Co. v. Farmer's Union, 55 Cal. 606; Waterman v. Boltinghouse, 82 Cal. 659; Moses v Bierling, 31 N.Y. 462; Schoenmann v. Whitt, 136 Wis. 332; Stensgaard v. Smith, 43 Minn. 11. (2) In its inception the appointment was a nudum pactum, because respondent did not agree to do anything; and taking the view most favorable to respondent, the offer could only be accepted by using ordinary diligence to sell the property with the burden of producing such proof, and with the question of having exercised proper diligence for the jury. However, construing the appointment in the light of circumstances, the advertising was wholly voluntary, and cannot be made a basis for a consideration. Schoenmann v. Whitt, 136 Wis. 332; Stensgaard v. Smith, 43 Minn. 11; Santaella & Co. v. Lange Co., 155 F. 719; Transportation Co. v. Bolt and Nut Co., 114 F. 77. (3) Respondent in its printed form of appointment chose to make the obligation to pay commissions depend upon this condition, "If a sale or exchange of said property is made while in charge of said company." Appellant made no sale until June 1, 1908, more than thirty days after notice of withdrawal, and after property had ceased to be in its charge. Close v. Browne, 230 Ill. 228, 13 L. R. A. (N. S.) 634; Five Per Cent Cases, 110 U.S. 471; Fleet v. Hertz, 201 Ill. 594; Ide v. Leiser, 10 Mont. 5; Evans v. Green, 23 Miss. 294; Creveling v. Wood, 95 Pa. 152; Baptist Church v. Wood, 46 N.Y. 131. (4) Respondent's printed form requires "a sale," and makes no use of any terms or words suggesting an agreement of sale or an executory contract of sale, and does not even use the verb sell. The distinction is well founded in law, and should be applied in this case. 1 Mechem on Sales, par. 5; Close v. Browne, 230 Ill. 228, 13 L. R. A. (N. S.) 634; 9 Cyc. 590; Millhiser v. Erdman, 98 N.C. 292; Goodwin v. Kerr, 80 Mo. 276; Five Per Cent Cases, 110 U.S. 471; Strong, Deemer & Co. v. Dinniny, 175 Pa. 586.
Karl M. Vetsburg for respondent.
(1) Under the contract in this case the agent is entitled to a commission on a sale of the property made by the owner himself without the aid of the agent. Metcalf v. Kent, 104 Iowa 487; Chapin v. Bridges, 116 Mass. 105; Cook v. Blake, 98 Mich. 289; Goward v. Waters, 98 Mass. 596; Lapham v. Flint, 86 Minn. 376; Kimmell v. Skelly, 130 Cal. 555; Gregory v. Bonney, 135 Cal. 589; Crane v. McCormick, 95 Cal. 176; Singleton v. O'Blenis, 125 Ind. 151; Fairchild v. Rogers, 32 Minn. 269; Harrell v. Zimpleman, 66 Tex. 292; Stringfellow v. Powers, 23 S.W. 313, 19 L. R. A. (N. S.), note p. 599; 19 Cyc. 264. (2) The authority in this case was an offer looking to the formation of a unilateral contract by the performance of certain services specifically provided for therein. On the performance thereof it became a power coupled with an interest and was no longer revocable at will. McRay v. Pfost, 118 Mo.App. 672. And the performance of the services specified makes a binding contract and furnishes a valuable consideration for the payment of commissions when a sale is made either through the efforts of the agent or by the owner himself. Cases cited under point 1. (3) A deed or transfer not being a constituent element of a sale. Rice v. Mayo, 1907 Mass. 550; Donohue v. Flanagan, 28 N.Y.S. R. 757; Eaton v. Richari, 83 Cal. 185; Watson v. Brooks, 8 Sawyer (U.S.) 316; Sanderson v. Wellford, 116 S.W. 382; Southwick v. Swavienski, 99 N.Y.S. 1079. Under any theory of the evidence, the sale was made prior to the expiration of the notice of withdrawal, though this fact is not essential to plaintiff's right to recover in this case. Goodson v. Embleton, 106 Mo.App. 77; Desmond v. Stebbins, 140 Mass. 339; Pope v. Caddell, 102 S.W. 327; 9 Current Law, 414 (note 88), 419; Brown v. Gilpin, 90 P. 267; Gibbins v. Sherwin, 28 Neb. 146; Hugill v. Weekley, 61 S.E. 360. (4) The owner cannot, by refusing to complete the sale, defeat the agent of his commissions. In such an event, the law treats the sale as made in so far as the matter of commissions is concerned. Goodson v. Embleton, 106 Mo.App. 77; Sallee v. McMurry, 113 Mo.App. 253; Watson v. Brooks, 8 Sawyer (U.S.) 316; Wells v. Andreas, 115 N.W. 462; Branch v. Moore, 84 Ark. 462; Canadian Imp Co. v. Cooper, 161 F. 279; Hugill v. Weekley, 61 S.E. 360; Sibbald v. Iron Co., 83 N.Y. 384.
By an instrument signed by defendant and dated February 1, 1907, he appointed plaintiff exclusive agent to sell a house and lot, to-wit, a part of lot 2, block 4847 in the city of St. Louis, stating the lowest price he would accept was $ 6750. The instrument contained this clause:
At the date of the contract plaintiff had in its service an employee by the name of Max Weinburg, who testified at the trial that during the summer of 1907, and therefore subsequent to the date of plaintiff's agency, he mentioned to Ben F. Reinberger defendant's property, proposing to sell it to Reinberger for a home, as he said he wanted to buy a home, or rather his wife did. The same witness said further defendant told him about the middle of May, 1908, defendant had sold his house; that the next day Weinburg met Reinberger and the latter said he had bought a house but could not tell the witness what house he had bought until the last of the month; thereupon witness told Reinberger that he (Reinberger) had bought defendant's house and Reinberger laughed. The witness communicated these facts to the plaintiff company and the latter, May 15, 1908, wrote a letter to defendant, stating plaintiff had been given an exclusive contract for the sale of the property, subject to the termination of the agency by defendant at any time on thirty days' written notice; saying further, plaintiff had received notice from defendant April 30th of the withdrawal of the agency, which would make the agency terminate May 29, 1908; that plaintiff had been informed defendant had contracted to sell the property to Ben F. Reinberger for $ 6500 and if this was the case, though a deed had not yet passed, plaintiff would be entitled to a commission on the sale and it should be closed through plaintiff; that Weinburg had submitted the house to Reinberger six months before and had worked with him and others trying to make a sale. This letter was not answered by defendant. A contract in writing signed by Lamar and by Reinberger and his wife and dated June 1, 1908, is in evidence and shows a sale of the property by defendant to Reinberger. The contract recited the receipt of one hundred dollars from Reinberger as earnest money and part of the purchase price, and stated the terms of the sale, to-wit, $ 2600 cash and that the sale was subject to a first deed of trust for $ 4000, etc.; said further if the title was found to be imperfect on examination and could not be perfected within a reasonable time, Reinberger was to be paid the reasonable cost of examining the title and the earnest money was to be refunded; that the sale was to be closed June 1, 1908, at the Savings Trust Company, and if not closed by said date owing to the failure and neglect of the purchaser to comply with the terms, the earnest money was to be forfeited. Reinberger testified his wife bought the property and paid $ 6600 for it, that on June first the abstract of title had already been run down, but there was no sale until said date; that he knew of no earlier contract than the one mentioned but he and his wife saw the property in May; did not see it the latter part of April; saw it early in May. He was asked if he bought the property or had an agreement to purchase prior to the date of the written contract, though no agreement was put in writing, and answered in the negative; testified defendant said he would not be able to sell the property until June first; that the sale was closed about one o'clock June first, though the earnest money receipt was signed at nine o'clock on the morning of said day. The following notice from defendant to plaintiff was put in evidence:
Said notice was received by plaintiff on April 29, 1908, and was acknowledged by it May first. May 30th was Memorial Day and Saturday, the next day, May 31st, of course, being Sunday. Defendant testified, identifying the earnest money receipt signed by Reinberger, that it was signed on June 1, 1908. There is some contention about the date at the head of...
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