Millan v. Porter

• Decision Date: 02 July 1888
• Citation: 31 Mo.App. 563
• Parties: MILLAN & ABBOTT, Respondents, v. BENJAMIN C. PORTER, Appellant.
• Court: Kansas Court of Appeals

31 Mo.App. 563

MILLAN & ABBOTT, Respondents, v. BENJAMIN C. PORTER, Appellant.

Court of Appeals of Missouri, Kansas City.

July 2, 1888

APPEAL from Buchanan Circuit Court, HON. VINTON PIKE, Special Judge.

Affirmed.

Statement of case by the court.

This was an action begun by plaintiffs before a justice of the peace to recover compensation as brokers for effecting the sale of real estate of the defendant.

The statement was as follows:

" Mr. Benjamin C. Porter, to Millan & Abbott Dr."

To commission on sale of dwelling-house, on Francis street, bet. 17th and 18th streets $100"

No answer was filed, none being required under our practice before a justice of the peace, but the defence, as stated by defendant's counsel in their brief here, was as follows:

(1) That defendant placed the property in the hands of plaintiffs for sale, and agreed to pay them one hundred dollars for their services provided they would sell the property for the sum of four thousand dollars cash, which they failed to do.

(2) That plaintiffs abandoned the contract to sell the property for defendant.

(3) That defendant sold the property himself, after plaintiffs had abandoned the contract, without the assistance or influence of the plaintiffs, to the same party, however, that plaintiffs were trying to sell it to, but defendant had no knowledge or information that it was the same party until after he had consummated the sale.

The defendant had judgment before the justice of the peace, and the plaintiffs appealed to the circuit court. On a trial in the latter court the plaintiffs had judgment from which the defendant has appealed to this court.

As to the question of the plaintiffs' employment there was the testimony of the plaintiff Abbott and the defendant. Abbott testified that he learned that defendant's property was for sale and went to the latter's house. Abbotts' testimony on this question is then thus set out in the defendant's abstract of the record: " I asked him if he wanted to sell it. He said yes. Q. What is your price? A. Four thousand dollars. I then told Mr. Porter that I represented the real estate firm of Millan & Abbott, and that I thought we had a customer for his place. Will you pay a commission out of the four thousand dollars? He said ‘ yes; I will give you one hundred dollars.’ I told him that that was not a full commission, but that I would take it, as I thought I had a customer for the place. I said, ‘ If I see my customer to-night, I will come back to-night." The defendant's testimony on this question was as follows:

" Mr. Abbott came to my house about March 1 and said that he understood my property was for sale. I told him it was. ‘ Well,’ he says, ‘ I think I have a buyer for you; and what is your price?’ I told him my price was four thousand dollars, cash. Mr. Abbott then asked me what I would give him if he sold on those terms. I told him I would give him one hundred dollars. ‘ Well,’ he said, " I will go and see if the man will take it.' He told me the man who wanted the property was a Mr. Shumaker. He lived just across the fence from me. I told him a few days before my place was for sale, and I thought it was his (Shumaker's) brother that was buying the place, who lived up in the north part of the city."

Immediately upon leaving the defendant's house, after the agreement as to the employment of his firm, Abbott saw Shumaker, who agreed to take the property for four thousand dollars, fifteen hundred dollars to be paid in cash, the balance in six months and one year. Abbott at once, on the same day, so reported to the defendant. The defendant declined to sell on the proposed terms, but insisted on the cash payment of the whole purchase price, explaining that he wished all cash in order to enable him to purchase certain property which he contemplated buying. Abbott left the defendant, stating that he would see Shumaker again and report to the defendant that day or the next morning. Abbott saw Shumaker, reported to him the terms of payment demanded by the defendant. Shumaker stated that he could not pay all cash, and remarked, " Well, that ends it."

As to what then occurred the testimony of Abbott and of Shumaker, the latter of whom testified for the defendant, did not agree. Abbott testified: " I said, " Hold on, you want the property, and you can get the money from some one else, and pay Mr. Porter,' and Mr. Shumaker said, ‘ I will think about that until morning.’ I said, ‘ All right, I will see you in the morning.’ I saw Mr. Shumaker the next morning and said to him, ‘ What about the property?’ He said, " I will see Mr. Porter at noon and arrange about that.' I told him he had better go immediately or ‘ you may not get it.’ He said, ‘ I will get it,’ and asked me what to do. I told him to pay some money on the trade, and to draw up writings, etc. He said, ‘ Very well; I think I can arrange with him to give him a check if I can see him.’ I supposed, of course, he was going right to Mr. Porter. Mr. Shumaker, that evening or the next morning, told me had purchased the property."

Shumaker testified: " Then Mr. Abbott said he had to go back again that night or in the morning to report, but I told him it was no use, that I could not buy it for cash. Mr. Abbott came back some time in the forenoon of the next day, and I asked him if he had seen Mr. Porter. He said, no, he had not, asked if I had seen him, and I told him no, I had not. I asked him if it would not be better for me to go up there as I still thought of buying the place to see Mr. Porter now. He thought it would be very well for me to see him. I went up there and purchased the place about noon. My wife sent me word that if I wanted the place, that I had better come up and purchase it, as Mr. Porter was about to sell it to some other parties, but I had left the store before I received the message. I heard it when I got home."

All the testimony, however, agreed as to this: That Abbott did not return to the defendant's, and that Shumaker did go to the defendant's, and did purchase the property on these terms: Fifteen hundred dollars in cash, notes for the balance of the purchase price of four thousand dollars payable in six and twelve months, with the understanding and agreement that if the defendant needed the balance, he should have it whenever he called for it. The stipulation as to the payment of the balance whenever called for satisfied the defendant.

The court gave for the plaintiffs the following instructions:

" If the jury believe from the evidence that defendant promised to pay plaintiffs one hundred dollars, if they would find some person who would purchase the premises, in proof, at the price of four thousand dollars, and if they further believe, that plaintiffs, or either of them, found such person ready and willing to purchase at that price, then the jury must find for plaintiffs, in the sum of one hundred dollars."

Of its own motion the court gave the following instructions:

" (a ) That if you find from the evidence that defendant put the property mentioned in the evidence in the hands of the plaintiffs for sale, and at that time instructed them to sell it for cash, and that they were unable to sell it to Shumaker except for part cash and part credit, and that afterwards defendant himself sold the property to Shumaker for part cash and the balance to be paid whenever defendant demanded it, then the verdict must be for the defendant."

" (b ) The court instructs the jury, that even though you find from the evidence, that defendant employed the plaintiffs to sell the property mentioned in the evidence, for a cash price, and agreed to pay them the sum of one hundred dollars for their services, in case they sold it; yet, if you further find from the evidence, that plaintiffs were unable to procure the agreement of Shumaker to take the property, upon the terms given to them, by defendant, then the verdict must be for the defendant; notwithstanding, you may further find from the evidence that defendant sold the property to the said Shumaker, to whom plaintiffs were trying to sell it."

" (c ) That if you find from the evidence that plaintiffs offered the property to witness Shumaker for the sum of four thousand dollars cash, at the direction of defendant, and that plaintiffs were unable to sell the same to him on those terms, and that afterwards Shumaker went to defendant and purchased the property from him, for part cash, and the balance to be paid whenever defendant should demand, then you will find for defendant; provided, you further find from the evidence that the plaintiffs were engaged by defendant to find a purchaser for a cash price."

And the court refused to give the following instructions asked by the defendant:

" 1. The court declares the law to be that under the pleadings and evidence in this case, the finding must be for the defendant."

" 2. The court instructs the jury, that even though they find from the evidence, that defendant employed the plaintiffs to sell the property mentioned in the evidence and agreed to pay them the sum of one hundred dollars, for their services, in case they sold it, yet if you further find from the evidence, that plaintiffs were unable to sell the property upon the terms given to them, by defendant, then the verdict must be for the defendant; notwithstanding, you may further find from the evidence, that defendant sold the property to the same person plaintiffs were trying to sell it to."

" 3. That if you find from the evidence, at any time before the sale was completed, that defendant instructed plaintiffs to sell the land for cash, then they are bound by that instruction, and if you find from the evidence, that they were unable or failed to sell for cash, they cannot recover in this

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