Reiger v. Bigger

• Decision Date: 20 February 1888
• Parties: LAWRENCE F. REIGER and JAMES P. FITZPATRICK, Respondents, v. WILLIAM F. BIGGER, Appellant.
• Court: Kansas Court of Appeals

29 Mo.App. 421

LAWRENCE F. REIGER and JAMES P. FITZPATRICK, Respondents, v. WILLIAM F. BIGGER, Appellant.

Court of Appeals of Missouri, Kansas City.

February 20, 1888

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

Reversed.

Statement of case by the court.

This was a suit by attachment instituted on a contract by which the defendant agreed to pay the plaintiffs a commission of two and one-half per cent. if they sold, or found a purchaser of, his land at twenty thousand dollars. The plaintiffs, as agents for the defendant, and in pursuance of their employment, entered into the following contract:

" Articles of agreement entered into by and between W F. Bigger, of Londonderry, Ireland, of the first part, and James R. McClure, James H. Austin, and Kenneth H. Clarke, of the county of Davis, state of Kansas, parties of the second part.

Witnesseth That the said Wm. F. Bigger, for, and in consideration of the sum of twenty thousand dollars to be paid to him as hereinafter mentioned, has sold, and hereby agrees to convey to the said McClure, Austin, and Clarke, lots from 44 to 68, inclusive, in Oakley, being the east one-half (1/2) of the northeast one-fourth (1/4) of section 35, township number 50, range number thirty-three (33), county of Jackson, state of Missouri. In consideration of which the said McClure, Austin, and Clarke agree to pay to said Bigger, on the execution of this agreement, five hundred dollars ($500), and sixty-one hundred and sixty-six and 66/100 dollars ($6,166.66), on the execution and delivery of a good and sufficient warranty deed for said property, free from all incumbrances whatever; and the balance of the purchase price, thirteen thousand three hundred and thirty-three and 34/100 dollars ($13,333.34), to be paid in two equal annual payments in one and two years, with eight per cent. (8 per cent.) interest per annum, secured by deed of trust on said real estate. The said McClure, Austin, and Clarke shall have the privilege of paying the nineteen thousand and five hundred dollars ($19,500) in cash, if they desire, upon the delivery of said warranty deed. If the title to said land proves to be defective, the above five hundred dollars will be refunded to said McClure, Austin, and Clarke, otherwise the five hundred dollars will be forfeited, and this agreement shall be null and void. And it is further agreed that, in failure to take deed by said McClure, Austin, and Clarke, they shall forfeit the five hundred dollars and no more; and the said Bigger agrees to furnish a complete abstract of title to be approved of Pratt, Brumback & Ferry. Witness our hands and seals, this twentieth day of May, 1882.

The parties of the second part to have all rents from delivery of deed, and on lease to parties who are now in possession. Said lease expires December 31, 1887.

W. F. BIGGER,

By REIGER & FITZPATRICK, his agents.

JAMES MCCLURE,

JAMES H. AUSTIN,

KENNETH H. CLARKE,

By C. W. WHITEHEAD, their agent."

The case was tried by the court without the intervention of a jury. The court made a finding of facts, and declared the law thereon as follows:

" The court finds the facts to be that defendant, Bigger, authorized and requested plaintiffs to procure a purchaser for the land named in the petition, at the price mentioned; that plaintiffs did procure said McClure, Austin, and Clarke as purchasers, and with them plaintiffs, acting for and on behalf of defendant, entered into the written contract dated May 26, 1882, read in evidence; that defendant, shortly thereafter, received the five hundred dollars from plaintiffs paid on said contract, and then saw said writing and approved the same in all its terms, and thereby ratified and confirmed said writing as his own; that defendant was thereafter ready and willing to carry out said contract on his part, but the same was not done by reason of the failure and fault of the purchasers, and through no fault of defendant. Said purchasers were all the time entirely solvent and fully able to complete said purchase had they chosen so to do, or fully able to respond in damages for the breach of said contract. The commission agreed upon for plaintiffs' services was two and one-half per cent. The defendant, Bigger, has retained said five hundred dollars. On these facts the court declares the law to be that plaintiffs are entitled to recover."

W. J. WARD, for the appellant.

I. The contract offered in evidence in this case between Bigger and McClure et al., is an optional or unilateral contract. Fue v. Houghton, 6 Col. 324; Kimberly v. Henderson, 29 Md. 512; Bradford v. Limpus, 10 Ia. 35; Morse v. Rathburn, 42 Mo. 594.

II. This being an optional contract the most the plaintiff could possibly lay claim to for making the contract between Bigger and McClure et al., was two and one-half per cent. on the five hundred dollars. Kimberly v. Henderson, 29 Md. 512; Pierce v. Powell, 57 Ill. 323. Love v. Miller, 53 Ind. 298, endorses the Maryland case as to the amount of commission on an optional contract, while rendering judgment for the claimants in that case because they made a valid contract.

III. Plaintiffs' fourth instruction should have been given because no man can be called upon by a realestate agent to sue upon a questionable contract that the agent has made, and to make himself liable for costs and expenses in testing its validity for the purpose of settling the agent's right to commission.

IV. Plaintiff's suit is brought on the ground that Bigger was in default; they, therefore, cannot recover on the ground that Bigger was not in default, but that the contract was binding on all parties, and that Bigger was liable to them as soon as the contract was made. Having sued on one cause of action, they cannot recover on an entirely different one. Lumpkin v. Collier, 69 Mo. 170; Scoville v. Glassner, 79 Mo. 449; Waldhier v. Railroad, 71 Mo. 517; Current v. Railroad, 86 Mo. 62.

V. The contract offered in evidence between Bigger and McClure et al., provided for five hundred dollars as liquidated damages, if McClure et al. failed or refused to carry it out, and that was all the remedy that Bigger had upon it. Morse v. Rathburn, 42 Mo. 594.

JEFFERSON BRUMBACK, for the respondents.

I. The respondents had earned, and were entitled to their commissions when the written contract of May 26, 1882, was made. Their right to commissions was not conditioned on the payment of the price by the purchasers, nor on the conveyance of the land by the seller. Rice v. May, 107 Mass. 550; Koch v. Emerling, 22 How. 69; Collins v. Fowler, 8 Mo.App. 588; Bailey v. Chapman, 41 Mo. 536; Tureman v. Stephens, 83 Mo. 218; Nesbitt v. Helzer, 49 Mo. 383.

II. Bigger kept the five hundred dollars, and got the fruits of the contract, and claims that his agents were entitled to nothing because it was an option.

III. The contract of sale is not an option. Story v. Solomen, 71 N.Y. 420; Bouvier's Law Dictionary, Option; Icley v. Grew, 6 Nev. and Man. 467; Martin v. Taylor, 1 Wash. C. C. R. 1; Pennybach v. Jones, 160 Pa.St. 237; Howard v. Hopkins, 2 Atk. 971. An option is the right for a consideration to decide at a future time to buy or sell some property, the court saying, among other things, " One may pay for an option to take at a future day, at a certain price, a farm or any article of personal property." " Option: choice; election." Bouvier's Law Dic. In this case the purchasers expressly promise to pay the whole twenty thousand dollars, the price, if the title was satisfactory. They could be sued on that promise notwithstanding the stipulation about the forfeiture of the five hundred dollars.

IV. The only option in the contract was one for Bigger, by which he could enforce it and get the twenty thousand dollars, or keep the five hundred dollars paid and the land for default on part of the purchasers. Fry on Spec. Perform., sec. 701, p. 408; Roberts v. Wyatt, 2 Taunt. 268; Doed' Nash v. Birch, 1 M. & W. 402; Hyde v. Watts, 12 M. & W. 254; Canfield v. Westcott, 5 Cowen 270; Mancius v. Sargent, 5 Cowen 271; Church v. Ayers, 5 Cowen 272; McKay v. Carrington, 1 McLean 50; 2 Parsons on Cont. [5 Ed.] 677, note r; 1 Hilliard on Vendors, p. 301, sec. 23.

V. Bigger kept the five hundred dollars as a substitute for performance on the part of the purchasers, but this does not affect the right of respondents to commission. Leete v. Norton, 43 Conn. 219; Love v. Miller, 53 Ind. 294.

VI. If, however, Bigger could not specifically enforce the contract, or recover the purchase money or damages for breach thereof, the plaintiffs are still entitled to recover. Leete v. Norton, 43 Conn. 219, is exactly in point. There was a written contract and five hundred dollars was agreed on as liquidated damages for default on the part of the purchaser. The purchaser defaulted, and the real-estate agents recovered their commissions against the seller. The court, among other things, say: " Now, though the plaintiff has not effected a sale or an exchange of the defendant's property, yet he has negotiated a contract for such exchange, agreed to by the defendant, in which contract a sum of money is specified which the defendant agrees to accept and in consideration of which to relieve Clinton from his obligation to make the exchange of properties, having thus fixed on the sum of five hundred dollars as an equivalent for the performance of this contract to exchange his property, as between himself and his co-contractor, the defendant cannot be allowed to deny that that sum of money is an equivalent as between himself and the plaintiff, by whose aid he made the contract." Love v. Miller, 53 Ind. 294.

VII. The plaintiffs proved a case within the petition. The appellant relies on matter outside the pleadings. The...