Nichols v. Pendley, 7809
| Decision Date | 25 January 1960 |
| Docket Number | No. 7809,7809 |
| Parties | Orville NICHOLS, Plaintiff-Respondent, v. Dennis J. PENDLEY and Berniece Pendley, Defendants-Appellants. |
| Court | Missouri Court of Appeals |
Henry Warten, Joplin, for defendants-appellants.
Jim Poynor, Joplin, for plaintiff-respondent.
This is a suit by a real estate broker against the owners-sellers for commission. At the close of all the evidence the court directed a verdict for the plaintiff broker, and from the judgment on that verdict the defendants have appealed. The facts, which are largely agreed, are as follows:
On March 2, 1958, the parties entered into written contract whereby appellant owners appointed respondent broker as an exclusive agent for a period of two weeks to sell a certain residence at a price of $8,750. The contract further provided that 'if this property is sold during the time this agreement is in force, or if sold to anyone to whom said property was submitted by Nichols Agency [the broker] or his representatives within 3 months from the termination date hereof, then in that event the undersigned shall pay to said Nichols Agency, Broker, 5% of the sales price as his commission due.' It is admitted that, within the two-week exclusive period, the 'plaintiff's salesman, Allee, on or about March 9, 1958, offered defendants' property to the Woolevers for sale and took the Woolevers through the house.' The salesman Allee, who testified that he 'showed the property' to Mr. and Mrs. Woolever, explained, without objection, that 'what they term showing the property is taking them through the house and trying, well not exactly trying, but at least submitting it to the customers so they can make up their mind whether they want to buy the property or not.' Both Mr. and Mrs. Pendley, the defendant-appellant owners, were present at the house and knew that plaintiff was showing it to the Woolevers. Woolevers did not then or thereafter make the plaintiff any offer, and there is a hiatus in the evidence as to what, if anything, occurred thereafter until the defendants transferred the property (in an exchange) to the Woolevers. The date of this transfer was well within the 90-day extension period.
The defendant Pendley testified:
'Q. Now, Mr. Pendley, were you present when Mr. Allee showed the property to the Woolevers? A. That's right, I was.
'Q. All right, and, er, then did the Woolevers later take over your property? A. Later took it over, yes.
'Q. Within the 90 days? A. Yes.
'The Court: Do you know what date they did take it over?
The agreed price of the property when transferred by defendants to the Woolevers was $8,750, but apparently, in order to get an F.H.A. loan, the property was valued at $9,125. Woolever got the F.H.A. loan and paid off the existing mortgage against defendants' house. Defendants took Woolevers' house subject to a mortgage, which they assumed. Pendley testified, without elaboration:
Mr. Chitwood did not testify, and there is no showing when he came into the picture whom he represented, or whether he ever had contact with the Woolevers, or the defendants, prior to the actual consummation of the trade.
Appellants' first and principal contention is that the plaintiff could not recover because he did not show himself to be the efficient procuring cause of the sale.
We can agree with the appellants that on a quantum meruit action or an action based upon a general listing, where the terms are not fixed by special contract, the broker is not entitled to his commission unless he is the 'efficient procuring cause' of the sale, and that the inducing cause must be one which is set in motion by the broker and proceeds without a break in continuity from the beginning to consummation of the sale. 1 But if the broker is the procuring cause of a sale at a consideration satisfactory to the seller, he is not to be denied his commission because the owner or another broker consummates the transaction. In the more succulent language of Judge Thompson (Brennan v. Roach, 47 Mo.App. 290, 297), it is the broker who shakes the tree, and not the one who runs up and gathers the fallen apples, who is entitled to the commission. 2 Nor is the broker to be denied because the seller is satisfied to accept an exchange of property instead of cash, or in some way varies the listed price. 3
It is not disputed that the broker 'produced' the (then prospective) buyers, in the sense that he learned of them, secured their consent to look at the property, showed it to them in the presence of the owners, and offered it to them for sale. Within approximately a month after that an F.H.A. loan was obtained and the exchange was effected. There is no showing that the prospective buyers refused to consider the property or that the plaintiff abandoned the sale, and of course the defendants knew that the Woolevers were the plaintiff's prospects. While we find it unnecessary to go as far as some courts have gone in somewhat similar situations, we think we are within the bounds of reason in saying that, where the agent produces the prospect, and the prospect within a reasonable time thereafter buys on terms commensurate with the listed price, in the absence of any evidence to the contrary it should be presumed that such prospect-buyer was ready, willing, and able to buy, for 'where a sale is consummated, that fact in itself proves that the purchaser is ready, willing and able and also, of course, that he has come in contact with the seller.' 4 And, given that showing, i. e., the production of a prospective purchaser who within a reasonable time thereafter buys at the listed price, it should be the owner's burden to show that the sale was not the result of the broker's procurement. No such showing has been made here. All we have is that the plaintiff made his cast and was playing the fish. The next thing we know is that another broker put it on the stringer. Absent showing of some intervening occurrence we must presume that plaintiff was the procuring cause of the fish's being on the stringer.
But there is a more cogent reason why appellants must fail. Here the action was based on a contract. Regardless of the soaring language sometimes used by the courts in respect to 'procuring cause,' the right to compensation must be governed by the contract. 5 This contract did not make the commission dependent upon the 'procuring cause' but upon the fact that the broker 'submitted' the property to the person who bought. It is conceded that plaintiff offered the house for sale to the Woolevers and showed them through it. The salesman used the term 'submitted' in describing and defining these actions.
There is a rule of construction which is that, if possible, meaning should be given to every word and phrase of a contract, 6 and we cannot ignore the clause in respect to payment of commission on sale made 'to anyone to whom said property was submitted.' There are numerous cases in the books in which there was dispute as the whether the broker had earned his commission by procuring a purchaser although the actual sale was not consummated until after the contract period. These cases necessarily raised various questions: whether the service was substantially completed during that period; whether there was fraud or interference on the part of the seller; whether the broker was the 'procuring cause'; whether the right to compensation was in fact conditional upon completion of the sale before the contract date; and whether the owner waived the contract time limit. 7 Is it not apparent that the parties wished to avoid possibility of such questions and disputes by fixing the conditions under which the compensation would be payable, and therefore agreed upon the provision for payment if the property had been submitted to a purchaser during the specified period? If we say that the broker must still have been the 'efficient procuring cause,' we have at the outset partially sterilized the word 'submitted' and robbed it of a part of its meaning, and we have read into the contract a clause or condition which does not exist. To this we cannot agree.
Defendants-appellants, by their second contention, 'submit' that the word 'submitted' means that the efforts of the plaintiff to interest the Woolevers must have proceeded to the point where they were 'likely purchasers.' To this they cite four cases from other states, 8 none of them too similar on the facts. Without attempting to distinguish them individually, we observe that in each of them the contract expressly provided for commission to be payable if the sale was completed to a person with whom the broker had been 'negotiating.' In those and similar cases it is held generally that 'negotiating' implies a situation where the interest of the buyer has been aroused to the point that the person may be considered a likely purchaser.
Negotiation implies a discussion of terms, a bargaining. It is generally used in connection with the consummation of business matters (65 C.J.S., p. 1273), 'to treat with a view to coming to terms.' Webster's New International Dictionary, Second Edition. The very word carries the connotation of steps near to completion. Thus, one 'negotiates' a contract, or a trade, or a treaty. It is farther down the road toward accomplishment than is 'submit.' One submits a proposition. Thereafter the other may 'consider' it, and the parties may negotiate concerning it to a conclusion. Shakespeare said, 'Let every eye negotiate for itself, and trust no agent.' 9
...
To continue reading
Request your trial
-
Richland Development Company v. Staples
...foundation on which to predicate a right to a commission." Additional light is cast on the question by the opinion in Nichols v. Pendley, Mo. App.1960, 331 S.W.2d 673, 675: "We think we are within the bounds of reason in saying that, where the agent produces the prospect, and the prospect w......
-
Holman v. Fincher
...at 128(2); Williams v. Mashburn, Mo.App., 37 S.W.2d 478, 482(2); Low v. Paddock, Mo.App., 220 S.W. 969, 971(2).6 Nichols v. Pendley, Mo.App., 331 S.W.2d 673, 675(1); McIntyre v. Emmenegger, supra, 355 S.W.2d at 354; Rogers v. McCune, Mo.App., 283 S.W.2d 872, 877(6); Real Estate Enterprises ......
-
Maine v. Garvin
...542; Jones v. Hollander, 130 A. 451, 3 N.J.Misc. 973; McKinney v. City of Abilene (Tex.Civ.App.1952) 250 S.W.2d 924; Nichols v. Pendley (Mo.App.1960) 331 S.W.2d 673; Hammons v. English, 129 Or. 511, 277 P. We want no misunderstanding concerning the rules governing the admissibility of parol......
-
Meyer Grp., Ltd. v. United States
...about procuring cause. See Messick v. Powell, 236 S.W.2d 897 (Ky. 1951); Gala v. Susnjar, 91 N.W.2d 885 (Mich. 1958); Nichols v. Pendley, 331 S.W.2d 673 (Mo. Ct. App. 1960); Clients' Serv., Inc. v. Pupo, 430 P.2d 552 (Wash. 1967); Kaye v. Coughlin, 443 S.W.2d 612 (Tex. App. 1969); Hyde Park......
-
Shakespeare in the Law
...Ct. App. 1983)("For Brutus is an honorable man,/So, they are all honorable men.")Julius Caesar, III, ii., 83-84). 34 Nichols v. Pendley, 331 S.W.2d 673, 677 (Mo. Ct. App. 1960) ("Let every eye negotiate for itself/And trust no agent.") Much Ado About Nothing, 11, i., 71-72). 35 Jastrabek v.......