Sallee v. McMurry

• Decision Date: 01 June 1905
• Parties: SALLEE et al. v. McMURRY.
• Court: Missouri Court of Appeals

88 S.W. 157

113 Mo. App. 253.

SALLEE et al. v. McMURRY.

St. Louis Court of Appeals. Missouri.

June 1, 1905.

1. REAL ESTATE BROKERS — RIGHT TO COMMISSIONS — BRINGING PARTIES TOGETHER.

A real estate broker earns his commission on producing a buyer able, ready, and willing to buy on the terms fixed by the owner, whether the sale is actually made or not.

2. SAME — PROCURING CAUSE OF CONTRACT.

A real estate broker is entitled to his commission on a sale of land, where he is the procuring cause of the negotiations resulting in a sale, though the agent does nothing more than to bring the parties together for the purpose of negotiating, and the negotiations are conducted and concluded by the principal in person.

3. SAME — FAILURE TO COMPLETE CONTRACT NEGOTIATED.

Where a contract for the employment of a real estate broker to procure a purchaser contained nothing as to the terms on which a sale was to be made, and the owner fixed the terms on meeting the purchaser produced by the broker, which the purchaser agreed to, the broker was entitled to his commission, though the owner failed to carry out the contract made with the purchaser.

4. SAME — REFUSAL OF PRINCIPAL TO CONVEY.

Where a real estate broker employed to procure a purchaser of land produced a person ready and able to buy, and he and the owner agreed on the terms of purchase, by which the purchaser could have the land at any time before a certain date if the owner did not sell to others, and the purchaser offered to take the land on the terms agreed on, and the sale was defeated by no other cause than the owner's refusal to convey, the broker was entitled to his commission.

5. SAME — TIME OF EMPLOYMENT.

A broker employed to procure a purchaser for a farm has, in the absence of any provisions in the contract of employment, a reasonable time in which to procure a purchaser, unless his authority is in the meantime revoked.

6. SAME — REASONABLE TIME — WHAT CONSTITUTES.

In determining what constitutes a reasonable time within which a real estate broker employed to procure a purchaser for a farm must procure a purchaser, in order to be entitled to his commissions, the facts and circumstances must be considered.

7. SAME — EMPLOYMENT — CONTINUANCE — EVIDENCE.

Where a broker who was employed in the fall of a year to procure a purchaser for a farm called the owner's attention to the employment some time in June following, and the owner stated that he remembered it, and, on being told that the broker would bring a land buyer the next day, stated that he would be at home, there was evidence tending to show that the employment of the broker continued, entitling him to his commission on producing a buyer ready, willing, and able to buy.

8. SAME — EMPLOYMENT — REVOCATION.

A real estate broker employed to procure a purchaser for a farm procured a buyer, who agreed with the owner on the terms of sale. The buyer was given to a fixed date to purchase unless the owner sold in the meantime. Before the time fixed, the buyer told the owner that he would not buy without also procuring adjacent land, which he could not do. The owner then stated to the buyer that the matter was settled between them. On the same day the buyer told the owner that he would take the farm on the terms agreed. Held, that the broker had earned his commission, though no sale was made; the owner's statement to the buyer not constituting a revocation of the broker's authority to procure a buyer.

9. SAME — ACTION FOR COMMISSION — INSTRUCTIONS.

In an action by a real estate broker for a commission for procuring a purchaser for a farm, who had first stated to the owner that he would not buy it, but who on the same day offered to take it on the terms agreed on, an instruction that he would have no right to return and offer to take the farm, for the mere purpose of collecting a commission from defendant, was erroneous, as suggesting a conspiracy between the broker and the purchaser.

Appeal from Circuit Court, Scotland County; E. R. McKee, Judge.

Action by Thomas J. Sallee and another against Wesley McMurry. From a judgment for defendant, plaintiffs appeal. Reversed.

From a careful reading of the record in this case, we become impressed at once that the verdict is for the wrong party. The suit is that of real estate brokers for their commissions. The principal facts are detailed in evidence substantially the same by both plaintiffs and defendant. They are as follows: The defendant owned a farm of 267.40 acres not far from Rutledge, in Scotland county. Some time in the summer or fall of 1901 he agreed verbally with plaintiff Sallee, who was a liveryman, that, if Sallee would procure for him a buyer for said farm at a price of $40 per acre, he would pay him 5 per cent. commission on the purchase price. About the 1st of the following June, 1902, Sallee interested his coplaintiff, Ferris, in the matter, and proposed that if Ferris, who had recently moved to Scotland county from Rock Falls, Ill., would assist him in procuring a buyer from among some of his former Illinois neighbors or elsewhere for said farm, he would divide the commission on the sale. Ferris assented thereto, and a few days later brought to Sallee a Mr. Jamison, of Rock Falls, Ill., a prospective buyer. This was on Saturday. Sallee called up the defendant over the telephone, who was then at his farm, and reminded him of their verbal contract or conversation had the fall before with regard to the sale of the land, and asked him if he still desired to sell. His answer was to the effect that he guessed so. Sallee then told him that he would bring some men out to see the land the next day. Defendant answered that he would be at home. On Sunday morning, Sallee, his co-plaintiff, Ferris, Mr. Jamison, the prospective buyer, and Mr. Hiens, also of Rock Falls, Ill., a former neighbor of Jamison and Ferris, drove to defendant's farm, where defendant met them and showed them around the place. While they were out on the farm, defendant and plaintiff Sallee separated themselves for a few moments from the remainder of the party, whereupon the following conversation between plaintiff and defendant, as testified to by defendant, took place: "He asked me then, `Don't you remember the conversation we had last fall at Rutledge?' `What was the conversation?' I asked. `You would give me 5 per cent. to bring you a buyer at $40 an acre.' And I told him I remembered it. We had gotten down within probably thirty steps of the men, and he says: `Don't mention this before these follows. I ain't known to them only as a liveryman.' And I says, `All right.'" Upon further examination of the farm, Mr. Jamison, the prospective buyer, was informed that defendant's brother Joseph McMurry owned the adjoining farm, of 267.40 acres, and that he might possibly be induced to sell. This interested Jamison very much, as he wanted a farm about the size of these two. He had in the neighborhood of $25,000 in cash which he desired to invest in lands. The party then went to Joseph McMurry's house. He not being at home, they decided to return to Rutledge and communicate with him the following day. On Monday morning Sallee called Joseph McMurry over the telephone. He said he would sell his farm. Thereupon the party drove a second time to the defendant's place, and found defendant plowing corn in his field. They examined both his farm and that of his brother Joseph, and Mr. Jamison practically concluded to take the farm, but he desired to go down into Carroll county with Mr. Hiens and look a little further. He and the McMurrys agreed, however, that if he returned by the 4th day of July he could have the farm of each at $40 per acre. A payment of $500 cash was to be made at the time of his return, and the remainder to be paid the 1st of the following March, at which time he was to have possession. The McMurrys reserved the right, however, to sell the land to any other buyer that might come along in the meantime; but, if it was not sold, Jamison might have it upon the terms stated at any time prior to July 4th. About June 25th Joseph McMurry, with whom the plaintiffs had no contract, and who is not a party to this suit, decided not to sell his lands, and so telegraphed Jamison. On that date, in the town of Rutledge, defendant and plaintiff Sallee had a conversation, in which the defendant sought to wriggle out of his commission contract, to which conversation defendant testified as follows: "Then Sallee says, `Don't you remember the first conversation I asked you last fall if you wouldn't give me five per cent., if I would bring you a buyer at $40?' And I told him I did remember of the conversation. `Well,' he says, `Now you are backing out of the trade.' I says, `I won't bind myself to sell it at $40.'" And further on he explains as follows: "I told him I would not bind myself to sell it at $40; that the old man had insisted that the odd $100 be knocked off, to make it an even price of $21,000 on both places, and that, if I had to do that — if I should give them a contract of 5 per cent. commission, and make a trade with the old man, and knocked that off — would they be willing to take $444 out of the 5 per cent., and they said they wouldn't." That Sallee advised him to stand pat at $40 — not knock off anything — and that old man Jamison would take the land at that price. On June 28th or 30th Mr. Jamison returned from Illinois to consummate the deal for the land. He and plaintiffs, Sallee and Ferris, drove to defendant's farm, where they met defendant and his brother Joseph. Mr. Jamison informed them that he had come to take the land and make payment thereon. Joseph McMurry told him he had concluded not to sell. He and Jamison had some conversation, and the matter was dropped so far as Joseph McMurry's farm was concerned. Defendant testified that he then asked Mr. Jamison if he wanted his farm without that of his brother, to which Mr. Jamison answered that he did not; that he...