Mullally v. Greenwood

• Decision Date: 05 March 1895
• Citation: 29 S.W. 1001,127 Mo. 138
• Parties: Mullally v. Greenwood et al., Appellants
• Court: Missouri Supreme Court

29 S.W. 1001

127 Mo. 138

Mullally v. Greenwood et al., Appellants

Supreme Court of Missouri, Second Division

March 5, 1895

Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant Judge.

Reversed and remanded.

Campbell & Ryan for appellants.

(1) The court misdirected the jury as to the meaning of the term "satisfactory." Osborne v. Francis, 38 W.Va. 312; Singerly v. Thayer, 108 Pa. St. 291; Boiler Works v. Schnaber, 155 Pa. St. 394; Zaleski v Clark, 44 Conn. 218; Brown v. Foster, 113 Mass 136; Allen v. Company, 14 S. Rep. 362; Tiedeman on Sales, sec. 213. (2) The above quoted part of said first instruction is bad, for the further reason that it assumes as a fact that there was an understanding as to the terms of the proposed lease between plaintiff and defendants at the time the written agreement of October 20 was made. Stone v. Hunt, 94 Mo. 475; Comer v. Taylor, 82 Mo. 341; Wilkerson v. Thompson, 82 Mo. 317; Heck v. Ritchey, 66 Mo. 114; Railroad v. Griffin, 68 Ill. 499; Durham v. Goodwin, 54 Ill. 469. (3) The same error is repeated further down in the same instruction. (4) This instruction is bad, because it restricts the jury to a consideration of the terms of the lease, in determining whether it was satisfactory, and ignores the important element in a lease of the character and responsibility of the lessee.

Chester H. Krum and C. M. Napton for respondent.

(1) The law governing this cause was properly declared by the circuit court. It is well settled, by a long series of adjudications, in this state, that a real estate agent or broker performs his duty, and is entitled to his commissions, when he produces a purchaser who is ready, willing, and able to buy on the terms authorized by the principal. And this is true, although the trade falls through, if the failure is due to the fault of the principal. Gelatt v. Ridge, 117 Mo. 553; Carpenter v. Rynders, 52 Mo. 278; Hayden v. Grillo, 35 Mo.App. 647; Bell v. Kaiser, 50 Mo. 150; Tyler v. Parr, 52 Mo. 249; Timberman v. Craddock, 70 Mo. 638; Zeidler v. Walker, 41 Mo.App. 118; Love v. Owens, 31 Mo.App. 501. (2) The instructions given by the court covered the entire case and every issue in it. It was, therefore, unnecessary to give all the instructions asked on both sides, although some of them doubtless enunciated correct principles of law. A failure to give such instructions, when others which were given cover the ground, is not error. McQuillin's Dig., p. 263, sec. 107. (3) The court did not err in defining the meaning of the term "satisfactory" lease. In matters of utility the refusal to accept can not be capricious. Rapalje on Real Est. Brokers, pp. 183, 184; Sloan v. Hayden, 110 Mass. 141; Pope Iron Co. v. Best, 14 Mo.App. 502; Braunstein v. Ins. Co., 1 Best & Smith, 782; Lord v. Stevens, 1 Y. & C. 222; Lawson on Contracts, sec. 409; Cutler v. Cutler, 98 N.Y. 628; 21 Am. and Eng. Encyclopedia of Law, 714; Hart v. Hoffman, 44 How. Pr. 168.

OPINION

Burgess, J.

On the twentieth of October, 1892, defendants, Moses M. and Moses Greenwood, Jr., were partners, doing a real estate business in the city of St. Louis under the name of Greenwood & Company, and on that day they made a proposition, in writing, to plaintiff, that if he would negotiate a satisfactory lease for ninety-nine years on the southwest corner of Sixth and Chestnut streets, when the same was duly executed they would pay him for such services the sum of $ 5,000.

On the day following, plaintiff, having procured a purchaser for the leasehold, went to the office of defendants, so informed them, and asked them to reduce their proposition to writing, as the party with whom he had contracted for the lease desired it. Defendants then wrote out and signed the following:

"October 19, 1892.

"Jos. J. Mullally, Esq., City.

Dear Sir: -- We are prepared to lease to you the southwest corner of Sixth and Chestnut streets, one hundred and twenty-seven and one half feet on Chestnut street by forty-eight feet on Sixth street, bounded on the west by a private alley fifteen feet wide, on the following conditions, namely: Annual rental of $ 7,000, payable quarterly in advance, lessee to pay the taxes; term of lease, ninety-nine years; building to cost at least $ 75,000, to be built within four years, and until such building is erected, lessee to give satisfactory bond for the rental until the building is erected; lease to contain the usual covenants in such leases. This proposition subject to withdrawal at any time, without notice.

Yours truly,

"Greenwood & Co."

Plaintiff then closed the contract for the lease according to defendants' proposition, received a payment of $ 500 on it, and so informed defendants, but they refused to close the contract or to perfect the lease. Plaintiff having complied with the contract, as he alleged, brought this suit for the $ 5,000 which he claims is due him on the contract.

Defendants in their answer admitted the partnership, but denied all other allegations in the petition. The answer then alleged that at the time the memorandum sued upon was signed and delivered plaintiff was informed and well understood that defendants were acting with respect thereto for other persons interested in said property, viz., one Otto L. Mersman, and that before any lease of said property negotiated by plaintiff would be satisfactory, it was necessary first to submit the same to said Mersman for his approval, and unless it was satisfactory to him it would be unsatisfactory to defendants and must be rejected. That plaintiff never negotiated any lease for said property satisfactory to either of defendants, or to said Mersman, and that they are not indebted to him in any amount. Plaintiff replied denying all new matter contained in the answer.

There was a verdict and judgment in favor of plaintiff for $ 5,101.66 2-3, and defendants appealed.

The evidence on the part of plaintiff showed that, when he reported to defendants that he had made a contract for the lease, as proposed by them, to S. F. Scott and others, and had received in part payment therefor Scott's check for the sum of $ 500, which he then indorsed to them, defendant Moses Greenwood, Jr., told him to write out whatever kind of receipt he wanted and he then wrote the following:

"St. Louis, October 21, 1892. Received of S. F. Scott and others the sum of five hundred dollars ($ 500) on account of first quarter's payment on ninety-nine year lease of parcel of ground on the southwest corner of Sixth street by one hundred and twenty-seven feet six inches on Chestnut street to a private alley, said lease to date from January 1, 1893, and balance of money so be paid as soon as satisfactory lease and bond is made by both parties, as per Greenwood & Co.'s letter to Joseph J. Mullally of October 19, 1892." Which Greenwood looked over and said, "I guess that it is all right." But defendants did not sign the receipt and refused to receive the check, which was good for the amount for which it called.

As to what occurred at the time of this conversation between plaintiff and Moses Greenwood, Jr., he, Greenwood, testified that he refused to accept the check of Scott, and told plaintiff that he could not do so until he saw Mersman, who was interested in the property; that he never agreed that the lease should begin from the first of January, 1893, but stated to plaintiff that he had no authority to make that change, and that Scott's name would not be satisfactory to either Mersman or himself.

Aside from what has been stated with reference to the conversation between plaintiff and Moses Greenwood, Jr., the proof tended to show that plaintiff had substantially complied with the terms of the agreement between himself and defendant with respect to the lease of the property.

At the close of the evidence defendants asked, and the court refused to instruct the jury that, under the pleadings and evidence, plaintiff could not recover; but the court did instruct as follows:

"If you find from the evidence that the plaintiff did negotiate a lease of the real estate named, the question then arises, was it a satisfactory lease within the meaning of that term in the written agreement. That term does not mean that the defendant had the right arbitrarily to pronounce the lease unsatisfactory, and therefore refuse to execute it and be released from the agreement to pay the plaintiff for his services; but it means a compliance with the terms of the proposed lease as understood between the plaintiff and the defendants at the time the written agreement of October 20 was made. And if the terms proposed by the plaintiff at the time he tendered the $ 500 check that has been mentioned in the evidence were different from the terms understood between the parties at the time the aforesaid agreement was made, you can not consider that such terms were satisfactory within the meaning of the agreement, unless you are satisfied from the evidence that the defendants agreed to those terms as satisfactory when so proposed. What were the terms of the proposed lease as understood between the parties at the time the aforesaid agreement was made, and whether or not the terms proposed by plaintiff at the time the check was offered as aforesaid, were agreed to as satisfactory by the defendants, are questions for you to decide under the evidence in the case.

"If at the time the written agreement in question was executed the plaintiff knew or was informed that Mr. Mersman was one of the owners of the property, and that his consent to the lease had to be obtained before it could be executed, and if the failure to execute the lease was because of his failure to approve the terms, or of his declining to join in the execution, then it could not be said that the failure to...