Reitz v. Oglebay

• Decision Date: 02 April 1923
• Citation: 251 S.W. 771,213 Mo.App. 611
• Parties: M. J. REITZ, Respondent, v. JENNIE W. OGLEBAY, Appellant
• Court: Kansas Court of Appeals

251 S.W. 771

213 Mo.App. 611

M. J. REITZ, Respondent, v. JENNIE W. OGLEBAY, Appellant

Court of Appeals of Missouri, Kansas City

April 2, 1923

Appeal from the Circuit Court of Jackson County.--Hon. Willard P Hall, Judge.

AFFIRMED.

Judgment affirmed.

Marley & Reed for respondent.

Harding Murphy, Stinson & Tucker for appellant.

OPINION

ARNOLD, J.

This action was brought to recover a broker's commission on the sale of real estate. The suit was directed against Jennie W. Oglebay, Frank M. Oglebay, her husband, and their daughter, Mary Oglebay Perry, as defendants. At the close of plaintiff's evidence, the court sustained a demurrer as to defendant Mary Oglebay Perry, and at the close of all the evidence a peremptory instruction in favor of Frank M Oglebay was given. A similar instruction asked in favor of Jennie W. Oglebay was refused. The verdict and judgment were for plaintiff in the sum of $ 1875 against defendant Jennie W. Oglebay. After unsuccessful motions for new trial and in arrest of judgment, defendant appeals.

The petition charges that on or about April, 1918, defendants Jennie W. Oglebay, Frank M. Oglebay and Mary Oglebay Perry, by and through Frank M. Oglebay as their agent, engaged plaintiff to procure a purchaser for the property at the northwest corner of Eleventh and Central Streets in Kansas City, Missouri; that he did procure a prospective purchaser therefor and advised defendants that the said prospective purchaser was the American Hereford Cattle Breeder's Association, a corporation. The petition further charges that defendants thereupon did sell and convey to said Association the said real estate, at and for the price of $ 70,000 cash; that by reason thereof plaintiff is entitled to the usual and customary commission for procuring a purchaser therefor, and accordingly seeks judgment in the sum of $ 1875.

The answer is a general denial.

The testimony, while conflicting in many essential points, tends to show that Jennie W. Oglebay and Mary Oglebay Perry owned what was known as the Oglebay home place, located at the northwest corner of Eleventh and Central streets in Kansas City, Mo.; that in the winter of 1917-18, plaintiff, a real estate agent, was informed by the secretary of the American Hereford Breeders Association that that body was interested in the purchase of a site for a permanent home for the Association and were pleased with the Oglebay property for that purpose. Plaintiff, thereupon, called at the Oglebay home and told the Oglebays that he had a customer who, he thought, would be interested in buying the property and asked them what they wanted for it. They replied that they had lived there a good many years and were not anxious to sell, but if he could get them an offer of $ 75,000, they would consider it and pay him a commission thereon. In this conversation, Mrs. Oglebay told plaintiff that Mr. Oglebay looked after her affairs and that future dealings must be with him. The evidence is undisputed that plaintiff never talked to Mary Oglebay Perry who owned an undivided one-half interest in the property.

The plaintiff's evidence further shows that in the period following this interview, plaintiff took the matter up with a Mr. Kinser, secretary of the American Hereford Association, the man who already had suggested that they liked the property. Mr. Kinser asked plaintiff, first, to see if the property could be purchased for $ 50,000; then for $ 55,000, then for $ 60,000, and later on, for $ 65,000. These figures all were rejected by Mr. Oglebay who insisted that they must have $ 75,000.

There is testimony that plaintiff continued his efforts thereafter to secure an acceptable offer on the property, until sometime about March, 1919, when plaintiff discovered that the property had been sold to the above named Association for the sum of $ 70,000, and that the transfer thereof had been made. Plaintiff then demanded a commission on the sale and payment thereof was refused. This action followed, with the result above indicated.

In support of her appeal defendant charges, first, that the court erred in giving, of its own motion, instruction C-1 for the reasons, (a) that it authorized a recovery without requiring the jury to find that plaintiff was the procuring cause of the sale, and (b) that said instruction was broader than the issues raised by the pleadings. In this connection it is argued that "it is a matter of grave doubt whether plaintiff's petition stated a cause of action."

The petition alleges that defendants, the owners of the property in question, engaged the plaintiff "to procure a purchaser" for the real estate in question; that plaintiff, as such agent, advised and informed the defendants that he had procured as a prospective purchaser therefor the American Hereford Cattle Breeder's Association, and that afterwards the defendants sold the property "to the said . . . Association, the prospective purchaser so procured by the plaintiff, as aforesaid, all of the aforesaid real estate, at and for the price of $ 70,000, . . ." and "that by reason thereof this plaintiff is entitled to receive from defendants herein the usual and customary commission for procuring a purchaser for the aforesaid real estate," etc.

We are unable to agree with the learned counsel for defendant in his analysis of the petition. It must be conceded that while the petition must charge that plaintiff was the procuring and efficient cause of the sale, there is no set formula by which such a charge shall be pleaded and it may be couched in any words which shall clearly convey the meaning and intent of such an allegation. The language of the petition quoted above we think successfully covers the requirements suggested.

As stated above, plaintiff's testimony tends to show that plaintiff disclosed the name of the purchaser to defendants. In the case of Merton v. J. I. Case Co., 99 Mo.App. 630, l. c. 634, it is said:

"It is the well-settled rule of law in this State that where an agent introduces the purchaser or discloses his name to the seller and through such introduction or disclosure negotiations are opened and the sale of the property is effected, the agent is entitled to his commissions, though the sale is made by the owner." Citing cases. [See also Gelatt v. Ridge, 117 Mo. 553, 560, 23 S.W. 882.]

The testimony on behalf of plaintiff tends to show that negotiations were entered into by defendants direct with an officer of the Hereford Breeders Association, that the sale was consummated and the deal closed. In Skirvin v. McKamey, 237 S.W. 858, to which our attention is called by defendant, this court held, l. c. 859:

"The ground upon which the trial court intimated that he would sustain the demurrer was that there was no evidence that the purchaser was ready, able, and willing to buy. Plaintiff sought to read authorities to the court presumably on the point that if defendant accepted the purchaser by entering into a contract with her, the question of whether the purchaser is ready, able, and willing to buy becomes immaterial. [Knisely v. Leathe, 256 Mo. 341, 372, 373, 166 S.W. 257; Wright v. Brown, 68 Mo.App. 577, 583; Pratt v. Irwin (Mo. App.) 189 S.W. 398, 399.]"

In Low v. Paddock, 220 S.W. 969, 972, it was held:

"Whether the broker is to 'introduce' a customer or to 'find' or 'procure' one, or whether he is to do these things combined, his duties remain practically the same, as the words 'find,' 'procure' and 'introduce' are generally used synonymously in the making of such contracts." [Citing 4 R. C. L. 304.]

In the case at bar the charge is that plaintiff was employed to "procure a purchaser." Under the testimony of record to the effect that plaintiff disclosed to the defendants the name of the prospective purchaser and endeavored to bring the parties to an agreement as to price and that defendants treated direct with...