Pile v. Bright

• Decision Date: 08 May 1911
• Parties: PILE et al. v. BRIGHT.
• Court: Missouri Court of Appeals

137 S.W. 1017

156 Mo. App. 301

PILE et al. v. BRIGHT.

Springfield Court of Appeals. Missouri.

May 8, 1911.

Rehearing Denied June 13, 1911.

1. FRAUDS, STATUTE OF (§ 17)—PROMISE TO ANSWER FOR DEBT OF ANOTHER.

A promise by a broker, employed to procure a purchaser of real estate, to guarantee a deferred payment by the purchaser, is an agreement by the broker to answer for the debt of another, and void under the statute of frauds (Rev. St. 1909, § 2783).

2. FRAUD (§ 12)—FALSE REPRESENTATIONS— ACTIONABLE MISREPRESENTATIONS.

False representations, to be actionable, must relate to a past or existing fact, and a promise to perform something in the future, standing alone, is not a basis of an action for fraud.

3. EVIDENCE (§ 419) — PAROL EVIDENCE — VARYING CONSIDERATION OF CONTRACT.

Where the recital of the consideration in a written contract is but a statement of the receipt of money, parol evidence of the actual consideration is admissible, but, where the recital shows on its face that the expressed consideration is a part of the terms of the written contract itself, parol evidence is inadmissible to contradict or vary the contract.

4. EVIDENCE (§ 419) — PAROL EVIDENCE — VARYING CONSIDERATIONS OF CONTRACT.

A contract between a broker, employed to procure a purchaser of real estate, and the owner, which recites that in consideration of a sale of the real estate to a third person, made by the broker, the owner agrees to pay the broker a specified sum as commission, makes a recital of the consideration a part of the substance of the contract and not a mere recital; and hence parol evidence is inadmissible to vary the consideration.

5. PRINCIPAL AND AGENT (§ 51)—ACTIONS AT LAW—REMEDIES.

The court in an action at law on a written contract between principal and agent must construe and enforce the contract as written, and the rule that an agent must deal fairly with his principal, and cannot profit by results accomplished by reason of the relation, is inapplicable.

Appeal from Circuit Court, Jasper County; David E. Blair, Judge.

Action by Joseph R. Pile and another, partners, under the firm name of Pile & Perry, against Eva Bright. From a judgment for plaintiffs, defendant appeals. Affirmed.

L. S. Dewey and John B. Cole, for appellant. E. F. Cameron, for respondents.

COX, J.

This is an action by plaintiffs to recover balance alleged to be due them for commission as real estate agents for having sold property belonging to defendant. The action was begun before a justice of the peace December 6, 1909, and in that court plaintiffs recovered judgment for $60, and defendant appealed to the circuit court. In the circuit court the plaintiffs filed an amended statement, and defendant filed thereto an answer in which she alleged: That the property sold was incumbered, and that her purpose in selling it was to get rid of the incumbrance and secure other property that was unincumbered. That plaintiffs found a purchaser for this property who offered to purchase it at the price of $2,250, the purchaser to assume the mortgage of $1,000 and to pay $100 cash when the deed was executed, and to pay $20 per month until the balance should be paid, and to secure the unpaid portion by a second mortgage upon the property. That defendant rejected this offer for the reason that it did not provide for enough cash to enable her to purchase other property, and for the further reason that she did not like a second mortgage as security. That, to overcome these objections upon her part, plaintiffs represented to her that the purchaser would pay $500 the following January, and, further, that plaintiffs would take up the second mortgage for her. That upon plaintiffs making these promises she, the defendant, consented to the sale, entered into a written contract with the purchaser, and also executed the contract for the payment of commission to plaintiffs upon which this suit is founded. Defendant alleged that the purchaser did not pay the $500 in the following January as plaintiffs had represented he would, and that plaintiffs had refused to take up the second mortgage as they had agreed to do, and that for that reason there was a failure of consideration of the contract sued upon; and alleged, further, that defendant had been damaged by plaintiffs' failure to comply with their part of the contract in the sum of $150. Defendant also alleged that the statements and assurances of the plaintiffs were fraudulently made without any intention of complying therewith, but for the sole purpose of inducing the defendant to execute the contract to pay commissions and thus wrongfully secure a claim against her.

At the trial, attorney for defendant admitted for the purposes of the trial that plaintiffs were partners, and had sold the property of defendant for $2,250; that defendant executed the contract with the purchaser, and also the contract in suit to pay plaintiffs' commission, and that she had paid thereon the sum of $40 only; and that the purchaser had made the monthly payments as required by his contract from the date of the sale to the date the suit was...