Michael v. Kennedy

• Decision Date: 02 July 1912
• Citation: 148 S.W. 983,166 Mo. App. 462
• Parties: MICHAEL et al. v. KENNEDY.
• Court: Missouri Court of Appeals

148 S.W. 983

166 Mo. App. 462

MICHAEL et al. v. KENNEDY.

St. Louis Court of Appeals. Missouri.

July 2, 1912.

1. PARTNERSHIP (§ 216)—ACTION—PLEADING —VARIANCE.

In an action by partners for broker's commission in effecting a sale of land, judgment for plaintiffs cannot be sustained on proof of a contract made with one of them individually.

2. BROKERS (§ 82)—COMPENSATION—ACTION —PLEADING—VARIANCE.

Allegation by a firm of real estate brokers, in suing for commission, of a contract by defendant to pay them any amount in excess of $4,000 realized from a sale, is not supported by a letter from one of the plaintiffs to defendant, stating that he was offered $4,000 for defendant's land and asked no commission, and by defendant's telegram, stating that he would take $4,000.

3. CONTRACTS (§ 346)—ACTION—PLEADING— VARIANCE.

One suing on a special contract must recover thereon, or not at all, and cannot recover as for money had and received.

4. CONTRACTS (§ 1)—"CONTRACT" — "AGREEMENT."

There is no difference between a "contract" and an "agreement."

Appeal from Circuit Court, New Madrid County; Henry C. Riley, Judge.

Action by George W. Michael and another against R. R. Kennedy. From a judgment for plaintiffs, and from an order denying a new trial, defendant appeals. Reversed.

Brewer & Riley, for appellant. Brown & Gallivan, for respondents.

REYNOLDS, P. J.

This is an action by plaintiffs in which the petition sets out that plaintiffs are partners doing a real estate business under the firm name and style of Michael & Son; that this firm on or about November, 1909, contracted to sell for defendant 220 acres of real estate situate in Craighead county, Arkansas, describing it, at and for the sum of $4,000, "these plaintiffs to have the amount over and above said sum of $4,000, which was to be paid by the purchaser as a commission to the plaintiffs herein." It is further averred that the sale was made according to contract by plaintiffs and that defendant collected the full sum of $4,400 but failed, refused and neglected to pay the sum of $400 to plaintiffs, "although demanded so to do." Judgment is prayed for the $400.

The answer is a general denial.

The cause was tried before the court, a jury having been waived. The court found for plaintiffs and rendered judgment accordingly, from which judgment, defendant, filing a motion for new trial and one in arrest, has duly perfected his appeal to this court.

The plaintiff George W. Michael was the only witness in the case introduced on the part of plaintiffs. He testified that his son and himself were a partnership known as Michael & Son. He was asked if he, as a real estate man, had sold a piece of land for defendant in Craighead county, Arkansas, and he answered that he did. He further testified that all communications between himself and defendant were in the shape of a letter and telegram and that whatever contract existed between them is evidenced by the letter and telegram. The letter referred to was on a letter head reading "Michael & Son, Exclusive Agents for Three Hundred Thousand Acres of Land in Southeast Missouri." Addressed to defendant Kennedy, and dated Campbell, Mo.; November 10, 1909, it is as follows:

"I am offered even $4,000 for your 220 acres in Craighead county, Arkansas. Payment, one-third down, one-third in one year, and one-third in two years, at seven per cent. I have been working on this for two months and have finally got an offer. Will you take it? Let me know by telegram. I talked rice and went with him to Stuttgart and showed him the fields. This is surely well sold. I ask no commission, as mine goes with it and he wanted all or none.

"Kindly yours, G. W. Michael."

Defendant answered this letter by a telegram from Spencerville, Ohio, under date of November 12th, and addressed to George W. Michael, Campbell, Mo., as follows:

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