Norman v. Vandenberg

• Decision Date: 29 May 1911
• Citation: Norman v. Vandenberg, 138 S.W. 47, 157 Mo. App. 488 (Kan. App. 1911)
• Parties: J. C. NORMAN et al., Respondents, v. O. P. VANDENBERG, Appellant
• Court: Kansas Court of Appeals

138 S.W. 47

157 Mo.App. 488

J. C. NORMAN et al., Respondents, v. O. P. VANDENBERG, Appellant

Court of Appeals of Missouri, Kansas City

May 29, 1911

Appeal from Jackson Circuit Court.--Hon. Walter A. Powell, Judge.

Judgment reversed and cause remanded.

Edward E. Naber, R. J. Smith and I. N. Watson for appellant.

Cooper and Wilson and John S. Wright for respondents.

OPINION

ELLISON, J.

Plaintiffs are real estate agents and were employed by defendant to sell certain realty which he owned and which was situated in Kansas City, Missouri.Plaintiffs, claiming that defendant prevented them from carrying out the contract, by selling the property himself, brought this action and recovered judgment in the trial court.

It will be observed in what we have just written that we have not stated what plaintiff sued for.We omitted a statement on that head for the reason that it is matter of sharp dispute between the parties what plaintiffs seek to do; whether they are suing on a contract to recover the contract price, or are suing on a quantum meruit to recover the value of their services, or, are suing for damages for breach of contract.

The facts stated as the evidence in behalf of plaintiffs tended to establish them, were that they and defendant entered into a contract whereby the latter, "in consideration of their advertising and pushing for sale at $ 65,000," certain described real estate, gave them the exclusive agency to sell for that price for sixty days, at the usual commission.It further tended to show that plaintiffs expended near $ 60 in advertising the property and that they informed defendant of two offers at considerably lower figure than the price fixed by the contract, which were refused.Seven days before the expiration of the time limited defendant himself sold the property for $ 63,000, to a party not known to plaintiffs and brought to defendant by other agents.He informed plaintiffs of the sale and they made no further effort.There was no evidence to show that plaintiffs had a customer ready and able to buy at the price they were to sell, or that they could have found one.

The amount which plaintiffs claim and for which they asked and obtained judgment, was $ 1650, a sum equal to the regular commission on $ 63,000.

We cannot determine from the argument by counsel whether plaintiffs prefer to regard their petition as founded on a breach of contract and damages on account thereof, limited in amount by the per cent named in the contract on the price they agreed to obtain, or the price the defendant actually obtained.The petition itself makes claim to the per cent stipulated in the contract, but on the price defendant obtained, and by that pleading we must, of course, consider the case.

It is easily said that if one is guilty of a breach of his contract with another, he must respond in damages; but to determine the measure of that damage is frequently a question of great difficulty.It may be said, in terms to which all will agree, that the measure should be such as will, as near as may be, restore to the injured party all he has lost, and all that he, in reasonable probability, would have gained, and no more.If from the nature of a contract and its breach, the extent of a loss or gain cannot be ascertained--can only be a matter of conjecture--then it would be the injured party's misfortune, which he should have provided against by having required a stipulation for a penalty, or liquidated damages.

Plaintiffs insist in one part of their argument that they are entitled, absolutely, to the sum they would have received as commission had they made the sale that defendant made and at that price.We reject that theory.They did not discover or produce the purchaser who bought of defendant.Neither did they produce, nor were they in negotiation with any one would have bought, either at the price at which they were to sell, or the price defendant obtained.They have not a case of that class where the owner consummates a sale to a purchaser found by the agent.

There is a class of cases where one party prevents the other from performing a contract which he certainly could perform and, in every probability, would perform, in which the measure of damages would be allowed to reach as high as the contract price.(This is sometimes reduced by what has been earned in other matters, but that need not be considered here.)Thus, an architect, who is prevented by his employer from performing his contract, has been held entitled to a sum not exceeding the contract price as the measure of his damage.[Pond v. Wyman,15 Mo. 175;Walker v. Lundstrom,132 Mo.App. 367, 112 S.W. 1;Simpson v. Ball,145 Mo.App. 268, 129 S.W. 1017.]And to another class belongs that of an attorney who enters upon the service and is wrongfully discharged; it will be presumed he would have performed the service, and the contract price itself would be the measure of damages.[Reynolds v. Clark County,162 Mo. 680, 63 S.W. 382;Kersey v. Garton,77 Mo. 645;McElhinney v. Kline,6 Mo.App. 94.]The cases last cited show that they form an exception to the general rule on account of the peculiar nature of the employment and the reasonable certainty that the engagement could and would have been performed if it had not been wrongfully prevented by the other party.

But this case does not belong to either of those classes.There is nothing in the nature of plaintiffs' engagement in this instance to suggest that it would with reasonable certainty have been performed.Within the limit stipulated they had seven days left in which to find a purchaser who would pay $ 65,000 for the property.They had not found one in fifty-three days, and there was no evidence tending to show that they would or would not have found one in the remainder of the time.If the contract had continued for seven days longer and they had not made a sale for $ 65,000, they would not have been entitled to receive anything; and we cannot discover any reason for saying that in defendant's breaking the contract there thereby accrued a definite loss to them of the fixed sum agreed upon as a commission.If plaintiffs, although not...