Russell v. Poor

• Decision Date: 29 June 1908
• Court: Missouri Court of Appeals
• Parties: RUSSELL v. POOR.<SMALL><SUP>†</SUP></SMALL>

119 S.W. 433

133 Mo. App. 723

RUSSELL v. POOR.^†

Kansas City Court of Appeals. Missouri.

June 29, 1908.

On Rehearing, December 7, 1908.

1. BROKERS (§ 86) — COMMISSIONS — WHEN EARNED.

Evidence held to show that a broker, employed to sell or exchange real estate, was instrumental in bringing about an exchange, authorizing a recovery of commissions.

2. EVIDENCE (§ 12) — JUDICIAL NOTICE — POPULATION OF CITIES.

The court will take judicial cognizance of the last census, showing that Kansas City has a population of less than 300,000.

3. BROKERS (§ 53) — COMMISSIONS — WHEN EARNED.

A real estate broker, seeking to recover commissions for a sale of property, must show that his acts were the procuring cause of the sale, and it is not sufficient to show that his act was merely one of a chain of causes producing the sale.

On Rehearing.

4. BROKERS (§ 88) — COMMISSIONS — ACTIONS — INSTRUCTIONS.

Where, in an action by a real estate broker for commissions, the issues involved the question whether the efforts of the broker were the procuring cause of the sale, an instruction, authorizing a recovery on a finding that the broker was employed to procure a purchaser and introduced a customer to the owner, to whom a sale was subsequently made, without requiring a finding that the broker was the procuring cause of the sale, was erroneous.

5. BROKERS (§ 53) — COMMISSIONS — WHEN EARNED.

Where a broker sues for commissions for procuring a purchaser, defendant is entitled to show that the efforts of the broker were not the procuring cause of the sale, and may show that the efforts of another were the procuring cause.

6. TRIAL (§ 296) — INSTRUCTIONS — ERRORS IN ONE INSTRUCTION CURED BY ANOTHER.

The error in an instruction given at the instance of plaintiff in an action for commissions for procuring a purchaser of real estate, authorizing a recovery on a finding that plaintiff was employed to procure a purchaser and introduced a customer, to whom a sale was subsequently made, arising from the failure to require a finding that the broker was the procuring cause of the sale, was not cured by a charge given at the instance of defendant that, before judgment could be rendered for plaintiff, he must show that through his services one was induced to purchase the property, since the two instructions were contradictory.

7. TRIAL (§ 296)—INSTRUCTIONS—ERRORS IN ONE INSTRUCTION CURED BY ANOTHER.

Proper instructions, given at the request of the party afterwards defeated, do not remedy material errors in antagonistic instructions given at the request of the successful party.

Appeal from Circuit Court, Jackson County; James H. Slover, Judge.

Action by J. A. Russell against A. J. Poor. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Sherman & Fletcher, for appellant. Kinley & Kinley, for respondent.

BROADDUS, P. J.

This suit is to recover commission for the alleged employment by defendant of the plaintiff to sell or exchange certain lots of ground belonging to him in Kansas City, Mo., for other real estate. The date of the alleged employment was on or about April, 1904. It was shown that plaintiff for a while after said date endeavored to find either a purchaser for defendant's lots or for exchange for the same, but without success. In June, 1904, plaintiff learned of a farm in Wyandotte county, Kan., which the defendant finally accepted in exchange for his said lots. Plaintiff called defendant's attention to the farm, and asked him whether he would trade his lots for said farm, to which defendant answered that he would if the terms were satisfactory, and at the same time he gave to plaintiff a description of his lots and their estimated value. Within a short time plaintiff saw defendant and gave him a description of the Wyandotte county farm, the name of the owner, and the terms upon which the trade could be made. The terms proposed were not satisfactory to defendant. The plaintiff then began looking for other property for exchange for that of defendant, but he did not succeed in finding any that defendant would accept. About June, 1904, one George W. Mickle, a real estate agent, made a proposition to defendant for an exchange of the Wyandotte county farm for the defendant's lots. The farm was owned by one A. B. Havens. The exchange of lots for the farm was consummated in June, 1905, at which time Mickle changed the terms of his former offer, which defendant, after inspecting the farm in company with him, accepted, and the exchange was agreed upon. It was shown that Mickle was the agent of the owner of the farm, who had transferred it to his two children during the period of the negotiations, and received from him, or them, a commission for making the exchange. There was evidence that, after Mickle became known in the transaction, he conferred with plaintiff as defendant's agent in regard to the exchange of the properties, and that it...