Proctor v. Gentry
| Decision Date | 08 November 1948 |
| Docket Number | 21075 |
| Citation | 214 S.W.2d 746 |
| Parties | PROCTOR v. GENTRY |
| Court | Kansas Court of Appeals |
Harry J. Salsbury, of Warrensburg, and Ed. Darnell, of Windsor, for appellant.
Fred F Wesner, of Sedalia, and Vernon Frieze, of Warsaw, for respondent.
This is an action to recover a real estate broker's commission. There was a verdict and judgment in favor of plaintiff in the sum of $ 200. Defendant has appealed.
The case was tried upon the amended petition, which alleges that on the 5th day of August 1947, the defendant requested the plaintiff to sell or to find a buyer for certain property owned by the defendant in Benton County 'for the sum of $ 2000.00 net to the defendant, and defendant promised and agreed with plaintiff to pay plaintiff all amount or sum over or in excess of $ 2000.00 for which plaintiff might be able to sell or find a buyer of said property as a commission for his services'; that on the 29th and 30th days of August 1947 'plaintiff submitted for sale and offered to sell said property for the sum of $ 2200.00 to one Travis Davis who informed plaintiff said property was worth the price he was asking but that he would have to see his wife before buying'; that, thereafter, on the 30th day of August plaintiff informed the defendant that he had offered for sale the property for the sum of $ 2200.00 to one Travis Davis who was interested in buying it; that, thereafter, defendant contacted, sold and conveyed the property to Davis but refuses to pay plaintiff a commission of $ 200, or any part thereof, and plaintiff prays judgment in that sum.
The original petition alleged that the defendant listed the property with the plaintiff for sale; that plaintiff offered the property to Davis, who told the plaintiff that the property was worth the price he was asking but that he would have to see his wife before buying; that thereafter plaintiff informed the defendant that he had offered the property to Davis; that, subsequently, defendant sold and conveyed the property to Davis for the sum of $ 2000. Plaintiff prayed judgment against defendant for the sum of $ 100 as commission.
Plaintiff's evidence was to the effect that on August 5, 1947 defendant came to his office and listed the property for sale with him for the sum of $ 2000 net to defendant; that plaintiff was to have any amount over said sum as his commission; that on August 29 and 30 plaintiff offered said land to Travis Davis for $ 2200; that Davis said it was worth the price but he would have to see his wife; that in the forenoon of August 30, 1947, plaintiff informed defendant that he had offered the land to Travis Davis for $ 2200, and defendant replied 'All right go ahead and sell it to him'; that thereafter about 8 p. m. of August 30, defendant without the knowledge or consent of plaintiff made and entered into a written contract for the sale of said land to Davis for the sum of $ 2000 and, at that time, made and executed a deed to Davis and his wife to the property.
At the trial defendant offered the original petition in evidence but the court excluded the same. This is assigned as error. There is no question but that the court erred in excluding the original petition. Walser v. Wear, 141 Mo. 443, 42 S.W. 928; Mahan v. Brinnell, 94 Mo.App. 165, 67 S.W. 930; Everhardt v. Garner, Mo.App., 100 S.W.2d 71.
Defendant insists that the amended petition, upon which the case was tried, fails to state a cause of action. We think that this contention must be sustained.
The amended petition fails to allege or state facts showing that the contract pleaded in the petition was performed. It does not allege that plaintiff sold or found a buyer for the property. In order for plaintiff to have found a buyer it was necessary for him to have found one ready willing and able to purchase the property. 9 C.J. p. 595; 12 C.J.S., Brokers, § 85; 8 Am.Juris. p. 1090; Hammack v. Friend, 180 Mo.App. 472, 166 S.W. 647; McCormick v. Obanion, 168 Mo.App. 606, 153 S.W. 267. The offering for sale of the property to Davis for $ 2200 and the latter's statement that the property was worth the price asked but...
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