Ramsey v. West

• Decision Date: 02 July 1888
• Parties: HENRY C. RAMSEY, Respondent, v. JOHN S. WEST, Appellant.
• Court: Kansas Court of Appeals

31 Mo.App. 676

HENRY C. RAMSEY, Respondent, v. JOHN S. WEST, Appellant.

Court of Appeals of Missouri, Kansas City.

July 2, 1888

Appeal from Jackson Circuit Court, HON. TURNER A. GILL, Judge.

Reversed and remanded.

W. J WARD, for the appellant.

I. The court erred in refusing the first instruction asked by defendant. (1) Because plaintiff did not show that he ever spoke to purchaser in regard to defendant's property, or said, or did anything to induce him to buy it. Armstrong v. Winn, 29 Minn. 126. (2) Because, even if plaintiff made the contract offered in evidence, it could not be enforced by the owner, and the purchaser abandoned it and refused to carry it out. Plaintiff not being the procuring cause of the sale (made more than one year and a half afterwards), is not entitled to commission. Earp v Cummings, 54 Pa. 394; Armstrong v. Winn, 29 Minn 126; Wylie v. Bank, 61 N.Y. 415; Sibbold v Bethlehem I. Co., 83 N.Y. 378. (3) Because the evidence showed that plaintiff had nothing to do with the final sale but that it was procured by other agencies. Harris v. Burtnett, 2 Daly, (N. Y.) 189; Armstrong v. Winn, 29 Minn. 126; Earp v. Cummings, 54 Pa. 394.

II. Conceding that Ramsey made the contract offered in evidence between Shaeffer and West the testimony of Ramsey, Ess and West all show that it was not carried out by Shaeffer, and Ess and West both testified that a new bargain for a different amount was made between Shaeffer and West long after Shaeffer had repudiated the claimed Ramsey contract, and for causes outside of Ramsey's agency, and no one testified to the contrary. Under such circumstances Ramsey could not recover, and this court has said that " where the facts are undisputed or clear the court should apply the law and determine the case," and defendant's first instruction should have been given. Powell v. Powell, 23 Mo.App. 365; Lomas v. Meeker, 25 N.Y. 361; Railroad v. Stewart, 57 Tex. 166; Rowland v. Plumer, 50 Ala. 182, 195; Hubert v. Butler, 97 U. S. [7 Otto] 319.

III. Defendant's first instruction should have been given, for, admitting that Ramsey made the contract and admitting that Shaeffer would not have heard of the defendant's land if it had not been for Ramsey, yet if Ramsey did not make a sale to him, but only an optional contract that Shaeffer would not carry out, and long after that transaction had been repudiated by him, he of his own motion bought the land, Ramsey cannot recover. Sibbold v. Bethlehem I. Co., 83 N.Y. 378, and cases cited above.

IV. The contract offered in evidence in this case is an optional or unilateral contract. Fue v. Houghton, 6 Col. 324; Kimberly v. Henderson, 29 Md. 512; Bradford v. Limpus, 10 Iowa 35.

V. Defendant's fifth instruction should have been given, for plaintiff's own witnesses testified that if West's statement was true that Shaeffer had first offered to buy from him there was no custom as to commission under such circumstances. Potts v. Aechturnacht, 93 Pa. 138; Murry v. Curry, 7 Car. & Payne, 584.

VI. It was not improper for defendant to assume in his fifth instruction that there was no custom as to commission if Shaeffer had applied to him first in the purchase of his land, for plaintiff's own witnesses testified that under such circumstances there was none and their testimony was not disputed. Carroll v. Railroad, 88 Mo. 239; Powell v. Powell, 23 Mo.App. 365; Lomas v. Meeker, 25 N.Y. 361; Railroad v. Stewart, 57 Tex. 166; Rowland v. Plumer, 50 Ala. 195; Price v. Haberle, 25 Mo.App. 205.

VII. The fourth instruction of defendant was not given as asked, but as no exception to the charge made by the court was saved, of course it is too late to object now.

VIII. Plaintiff's instruction should not have been given, because there is no testimony to show that plaintiff made the sale of defendant's land. He could only have a claim against defendant on the ground that he made the contract with purchaser, and that it was binding; or that by bringing the property to the purchaser's notice defendant was enabled to make the sale,-- neither of which grounds the instruction covers. Besides, the instruction would naturally mislead the jury, because it says nothing of the final sale in which plaintiff took no part. It does not cover the whole case, and is, therefore, improper. Hoffman v. Parry, 23 Mo.App. 20; Ellis v. Waggoner, 24 Mo.App. 407.

IX. Defendant should have been allowed to read the letter written to plaintiff, as plaintiff had testified about it.

WARNER, DEAN & HAGERMAN, for the respondent.

I. The plaintiff's instruction was rightly given, and defendant's first instruction rightly refused. The plaintiff's instruction told the jury that if the plaintiff was employed by the defendant to procure a purchaser at a stated price, and he procured such purchaser, and that he was to receive the usual and ordinary commission, then he was entitled to recover the usual and ordinary commission on the purchase price of the land. The plaintiff's testimony was, that the defendant employed him to sell the land, and he told the defendant he would charge him two and one-half per cent. commission, and the defendant said, " Go ahead, you will have your commission." The witnesses, Whipple, Lippincott, and Lee, each testified that the usual commission at Kansas City, where the sale was made, on such a sale was two and one-half per cent. on the purchase price. There was no testimony offered by the defendant tending to contradict the plaintiff's testimony as to what was the usual and ordinary commission.

II. Where a real estate agent makes a sale of land, he is entitled to the usual commission established by usage at the place where the sale was made. Kock v. Emmerling, 22 How. (U. S.) 69. And when the agent procures a purchaser ready to buy on terms satisfactory to the owner, he is entitled to his commission. Ibid.; Veener v. Harrod, 2 Md. 63; McGavock v. Woodlief, 20 How. (U. S.) 221; Barnard v. Monnot, 34 Barb. (N. Y.) 90.

III. Where the broker negotiates the sale of real estate he is entitled to his commissions, though owing to the default of his employer the sale is never effected. Carpenter v. Rinders, 52 Mo. 278; Timberman v. Craddock, 70 Mo. 638; Bell v. Kizer, 50 Mo. 150; Tyler v. Parr, 52 Mo. 249; Beauchamp v. Higgins, 20 Mo.App. 574.

IV. But it is claimed that the written contract in this case was nothing but an optional contract so far as the purchaser was concerned and was not binding on him; and, therefore, no contract for the sale of the land was in fact made. We submit, if such were the true construction of the contract, it could not affect the plaintiff's rights to his commission. Whatever the contract between Shaeffer and plaintiff, it was adopted by West and signed personally by him; it included the terms on which he was willing to sell. It was his contract, not that of his agent. If the plaintiff had made the written contract, and negligently and intentionally put it in such form that it did not bind Shaeffer, it might be reasonable that he should forfeit his commission. When, however, the defendant himself made the contract, he cannot complain if as made it did not bind the purchaser. The only duty of plaintiff, as defendant's agent, was to find him a purchaser who was willing to buy on the terms proposed by the defendant. The defendant is concluded in this suit for commissions to say that the contract was not upon the terms intended and authorized by him. All of the authorities agree that the agent is only required to produce a purchaser, ready and willing to contract with the owner on the owner's terms. We contend, however, that the written contract referred to was binding on both Shaeffer and West, and Shaeffer's failnre to pay the five thousand dollar payment did not release him from the obligations imposed upon him by the contract. The provision in the contract to the effect that if Shaeffer failed to pay the five thousand dollars on or before the time stipulated, that the agreement was to be wholly void, must be construed to mean that it should be void at the election of West, the owner. Certainly the contract was binding on the purchaser. Clark v. Jones, 1 Denio [N. Y.] 517; Canfield v. Westcott, 5 Cowen [N. Y.] 270; Marcius v. Sargent, 5 Cowen [N. Y.] 271; Church v. Ayres, 5 Cowen [N. Y.] 273. The true rule is that a contract to the effect that it shall become void between the parties upon nonpayment or other nonperformance is for the benefit of the obligee, and the obligor cannot avail himself of it. Mason v. Caldwell, 5 Gil. [Ill.] 196; Barbour's Exr's v. Brookey, 3 J. J. Marsh. 511; Wilkerson v. Still, 4 P. 629; Cartwright v. Gardner, 5 Cush. [Mass.] 281.

V. The fifth instruction was rightly refused. It attempted to single out an alleged fact, namely, that plaintiff had, previous to his employment by defendant, been offered by the purchaser nineteen thousand two hundred and fifty dollars as diminishing plaintiff's compensation, though there is no pretense that defendant ever notified the plaintiff that he had such offer or that plaintiff knew of such offer. The testimony of plaintiff's witness Whipple, is that under the usage the previous offer would not diminish the compensation, but the agent would be entitled to the commission on the entire purchase price. This instruction was also glaringly erroneous in that it concludes by saying the jury " will only find for plaintiff such sum as they may think his services were reasonably worth." The purpose of the draftsman evidently was to have the jury guess at the measure of plaintiff's compensation, while the undisputed testimony shows that the recovery of the plaintiff, if anything, should have been the usual commission, which was indisputably proved to be two and one-half per cent. The jury had to...