Sandbrook v. W. L. Morrison Invest. Co.
| Decision Date | 20 February 1922 |
| Citation | 239 S.W. 543,209 Mo.App. 600 |
| Parties | THOS. SANDBROOK ET. AL., Respondent, v. W. L. MORRISON INVEST. CO., Appellant |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Jackson County.--Hon. Henry L Jost, Special Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Watson Gage & Ess and Conger R. Smith for respondent.
Sebree & Sebree and M. M. Bogie for appellant.
--This is an action to recover the balance claimed to be due under a contract for the sale of certain real estate owned by plaintiffs in Kansas City, Missouri. There was a verdict and judgment in favor of plaintiffs in the sum of $ 708.58 and defendant has appealed.
The facts show that on March 27, 1920, plaintiff, Thomas Sandbrook, called at the office of the defendant in response to an advertisement and there entered into the following contract:
"To W. L. Morrison Inv. Co. For and in consideration of One Dollar ($ 1) the receipt of which is acknowledge I hereby appoint you exclusive agent to make sale of the real property herein described as Lots 9 and 10 in Block 4 Co'ds Brooklyn Hill Addn. Known as 2210 E. 20th st. for the price of $ 4,000 net upon the following terms $ --cash, cash $ --secured by mortgage thereon for--year at--percent, and you are hereby authorized to accept a deposit to be applied on the purchase price, and to execute a binding contract for sale on my behalf.
In case above described property is sold or disposed of within the time specified, I agree to make the purchaser a good and sufficient warranty deed to the same and to furnish a complete abstract of title, if required; and it is further agreed that you shall have and may retain from the proceeds arising from such sale no per cent commission on the above price; and 100 per cent of all of the consideration for which said property is sold over and above price specified, and in case said property is sold within said time either through you or any other person, then in that case I promise to pay you five per cent on the whole amount for which said property may be sold.
This contract to continue until June 1, 1920, and thereafter until terminated by notice giving unto you as agent ten days notice in writing.
Signed THOS. SANDBROOK.
Witness."
The contract was on a printed form. The word and figures "$ 4,000 net" were inserted in long hand by defendant. Plaintiff, Thomas Sandbrook, testified, over defendant's objection, that upon going to defendant's office he saw one Colvin and told him he wanted $ 4000 cash for his property; that there was a first mortgage on it which was for approximately $ 700; that before any commission could be earned by the defendant it would be necessary for it to sell the property for enough to pay off the mortgage and to give said plaintiff the sum of $ 4000 in cash in addition; that Colvin then turned said plaintiff over to another employee of defendant and told the latter to writ up the contract, said plaintiff telling the latter employee the same that he had told Colvin. This employee then wrote up the contract and said plaintiff signed it. The property was owned by both plaintiffs who were husband and wife. The husband signed the contract intending to bind his wife as well as himself and his wife ratified the acts of her husband.
Nothing more was heard by the plaintiffs until about seven o'clock of June 23, 1920, when Colvin called at their home. At this time plaintiffs were seated on a bench in their yard. Plaintiff, Thomas Sandbrook, testified that Colvin told them that he had come to see them in regard to getting them to extend for ten days the time on the contract; that Colvin "laid the paper down on the bench and asked us to sign it." He told them that he had "two or three parties on the string and wanted a little more time--he wanted to extend the contract for ten more days." This contract was printed in fine print as was the first one. Said plaintiff testified that the only thing Colvin said in respect to the paper he had in his hand was that "it was a ten day's extension." He further testified "I did not have my new glasses at that time . . . I could not see to read the fine print; I could not see without my glasses and did not try to read the writing; I just read the writing on the top . . . I cannot read fine print--I cannot see it very good with these glasses and with the old glasses I had I could not see it." Said plaintiff testified that he had been a carpenter all of his life; that he was seventy-two years of age and that "my eyes are very weak." "I was sick at the hospital at two different times and my eyes are in bad shape." "When the first contract was shown me I could not read the small print." No money was received by plaintiffs at the time they signed the new contract on June 23, 1920.
Plaintiff, Kate Sandbrook, testified that Colvin came out to see them after supper; that the paper he had was written in fine print; that he represented that it was merely an extention of time in which to sell the property. She further testified, "I could not see it unless I was right close to it in a good light--I could not read it that evening--I cannot read fine print very well--I have to use glasses." She further testified that neither she nor her husband ask Colvin to read the new agreement over nor did Colvin offer to read it. No copy of the papers was given to the plaintiffs. She further testified, "I could see the paper that we signed but could not read the writing--I just knew it was an extension." The plain inference from the testimony of both plaintiffs is that they signed the paper relying upon Colvin's representation that it was merely an extension of the old contract. However, the paper turned out to be an exact copy of the contract signed on March 28th except the word "net" was left out and it contained the signature of Kate Sandbrook and a new date. It is apparent from the testimony of both plaintiffs that they were inexperienced in business affairs. Colvin, testifying for defendant, stated that it was his intention to insert the word "net" and that it was "purely omission on my part; I had intended it should be (inserted) because my understanding was that they should receive $ 4,000 net for the property." It will be noted that it was unnecessary for defendant to have secured any extension of the time of the contract of March 27, for the reason that by the terms of that contract it was to continue until June 1st and thereafter until ten days after the time plaintiff should give defendant notice in writing of their intention to terminate the contract.
On the day before Colvin went to plaintiffs' home and procured the new agreement from them, the defendant had sold the property to L. A. and Ruth Brown. Some days afterwards plaintiffs were asked to convey the property directly to the Browns, which they did. The treasurer of the defendant testified that on examining the abstract it was discovered that there was a mortgage against the property and that after the deed was signed she told the plaintiffs that "as soon as I pay up this loan I will get you your money to settle that." Afterwards a check payable to plaintiffs in the sum of $ 3073.67 was given to plaintiff, Kate Sandbrook, at defendant's office, which had endorsed thereon, "This check is given in full payment of the following; Settlement of sale of 2210 East 20th St." This check was endorsed by plaintiffs and cashed. Plaintiff, Kate Sandbrook, gave a receipt which reads as follow:
Plaintiff Thomas Sandbrook, testified that his wife brought the check home, showed it to him the night of the same day and that he looked at it and saw that it was not for the right amount. He immediately called upon Colvin at his house in regard to the matter; Colvin was not at home but later in the evening he called upon the plaintiffs. Both plaintiffs testified that they did not see anything about "settlement of sale" on the check. Plaintiff, Thomas Sandbrook, told Colvin that night that the check "was not the right amount at all; I was to get $ 4,000 net;" that Colvin told him that he could not do anything and for him to "call down there and see Mr. Morrison." Plaintiff, Kate Sandbrook, testified ...
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