Park v. Culver

• Decision Date: 03 March 1913
• Citation: Park v. Culver, 169 Mo. App. 8, 154 S.W. 806 (Kan. App. 1913)
• Parties: ROBERT H. PARK, Appellant, v. JOHN C. CULVER, Respondent
• Court: Kansas Court of Appeals

154 S.W. 806

169 Mo.App. 8

ROBERT H. PARK, Appellant, v. JOHN C. CULVER, Respondent

Court of Appeals of Missouri, Kansas City

March 3, 1913

Appeal from Jackson Circuit Court.--Hon. W. O. Thomas, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

J. L Lorie and E. Batavia for appellant.

Ashley & Gilbert for respondent.

OPINION

JOHNSON, J.

--This is an action to recover a real estate agent's commission appealed by plaintiff who suffered defeat in the circuit court.

Defendant traded a farm he owned in Kansas for an apartment house in Kansas City. Plaintiff who is a real estate broker in Kansas City contends that defendant employed him to procure a purchaser for the farm and agreed to pay the usual commission for such service; that he introduced defendant to the agents of the owner of the apartment house and initiated and assisted in negotiations that culminated in an exchange of properties, and that defendant not only agreed to pay his commission but during the negotiations agreed to give him and another broker who participated in the transaction a bonus of $ 100 if the proposed exchange were effected. Afterward defendant paid the bonus but refused to pay the commission. His contention is that he did not employ plaintiff; was not introduced to the agent of the owner of the apartment house by plaintiff and that while he paid plaintiff and the other broker $ 100 for the aid they gave towards the consummation of the trade, the payment was gratuitous and not in discharge or acknowledgment of any legal claim or demand in favor of plaintiff.

The evidence of plaintiff shows that he played only a minor part in the negotiations leading to the exchange and that his principal service consisted in the introduction of defendant to the agents of the owner of the apartment house. The negotiations that ensued were brought to a successful issue by the principals themselves and the jury well might have believed from all the evidence that while plaintiff was employed by defendant, as he states he was, and was the agency by which the principals were brought together and the negotiations were initiated, his subsequent efforts were of little effect and that the contract made by the principals was the product of their own unaided efforts to arrive at an agreement.

In such state of case it was prejudicial error for the court to give the following instruction requested by defendant "Before, under any circumstances, the plaintiff can recover in this action, he must prove by the greater weight of the credible testimony that he was the efficient and procuring cause both in finding and inducing the Guardian Trust Company to enter into the contract with defendant made on the 6th day of May, 1910, and to establish that he was such efficient or procuring cause, it is not enough that his acts or efforts were one or more of a series of...