Perrin & Shoemaker v. Kimberlin
| Decision Date | 27 February 1905 |
| Citation | 85 S.W. 630,110 Mo.App. 661 |
| Parties | PERRIN & SHOEMAKER, Respondents, v. J. W. KIMBERLIN, Executor, etc., Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. J. H. Slover, Judge.
AFFIRMED.
Judgment affirmed.
L. H Waters for appellant.
(1) It is only where a purchaser is found who is willing, able and ready to take the land or able to respond in damages if he fails, that the agent is entitled to recover commissions. Hayden v. Grillo, 35 Mo.App. 647; Finch v. Trust Co., 92 Mo.App. 271; Gelatt v. Ridge, 117 Mo 553; Childs v. Litchfield, 66 Mo.App. 422. (2) The theory on which this case was tried ignored the requirement that the purchaser should be able, willing and ready to complete the purchase or able to respond in damages. (3) The court erred in refusing appellant's instructions numbered 1 to 6 inclusive. The contract prepared by plaintiffs required the payment of $ 500 at the time of the signing of the contract, and recited that the money was in their hands when in fact it never was paid.
Metcalf & Brady and Glen Sherman for respondents.
(1) We think that the facts standing as they do, undisputed in the evidence, entitle plaintiffs to recover and clearly justify the court in giving plaintiffs' first instruction. Childs v. Crithfield, 66 Mo.App. 422; Finch v. Trust Co., 92 Mo.App. 271; Harwood v. Diemer, 41 Mo.App. 49; Rieves v. Vette, 62 Mo.App. 440; Hayden v. Grillo's Admr., 42 Mo.App. 1.
This is an action for commission alleged to be due plaintiff for making sale of certain real estate owned by defendant. The judgment was for plaintiff in the trial court.
The facts necessary to understand for disposal of the case are these: Plaintiff had the property in question for sale. He produced a purchaser ready, able and willing to buy. A price was agreed upon between the purchaser and defendant and they entered into a written contract setting out the terms of the sale. Among other provisions were these: That $ 500 was to be paid at the time the contract was signed. Defendant was to furnish a complete abstract of title within twenty days and the purchaser was to have ten days after its delivery to him in which to examine it. If the title was found defective defendant was to have a reasonable time, not to exceed thirty days, to cure defects. But if the defects could not be cured within that time, the contract was to be void and the $ 500 deposited should be returned. If it was found that the defendant had a good title in fee he was to execute a good and sufficient deed. It was undisputed that the $ 500 referred to in the contract was the purchaser's check for that sum on his bank of deposit in Kansas, and that such check would be left in charge of the Union National Bank...
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