Schwabe v. Estes

• Decision Date: 05 January 1920
• Citation: 218 S.W. 908,202 Mo.App. 372
• Parties: JAMES W. SCHWABE, et al., Appellants, v. W. B. ESTES, Respondent
• Court: Kansas Court of Appeals

218 S.W. 908

202 Mo.App. 372

JAMES W. SCHWABE, et al., Appellants, v. W. B. ESTES, Respondent

Court of Appeals of Missouri, Kansas City

January 5, 1920

Appeal from Boone County Circuit Court.--Hon. David H. Harris Judge.

AFFIRMED.

Judgment affirmed.

Ralph T. Finley for appellants.

McBaine Clark & Rollins for respondent.

OPINION

BLAND J.

This is a suit for a real estate broker's commission. There was a verdict and judgment for the defendant. Plaintiffs have appealed, complaining of instructions given on behalf of defendant.

There was evidence on the part of plaintiffs that on or about February 4, 1918, plaintiffs and one Frazier, being auctioneers, went to see the defendant for the purpose of buying his personal property or being employed to sell it as auctioneers; that at that time defendant listed his farm of 397 acres with plaintiffs to be sold by them for $ 100 per acre and agreed to pay plaintiffs a commission of two and one-half percent. Shortly afterwards plaintiff Clay Schwabe saw one Gordon as the former was walking down 9th Street in Columbia, Missouri, and talked to the latter about buying the farm. Gordon said "he would consider it," that there was a party he wanted to communicate with before he would look at it. Three or four days later said plaintiff inquired of Gordon if he had heard from the man and Gordon said that he had not. Six or seven days thereafter said plaintiff saw Gordon for the third time and the latter said that the other man had not been able to sell his farm in Pettis County and that he (Gordon) "did not know just what about the deal at that time." Said plaintiff offered to take Gordon to see the farm but Gordon would not go, saying that he would see said plaintiff later. Sometime in March, 1918, Gordon purchased the land directly from defendant at the price and sum of $ 100 per acre, paying $ 1,000 in cash and agreeing to pay the balance on or before March 1, forfeit said sum of $ 1,000.

Sometime before March, 1919, Gordon sold the land to one Lynes and it was conveyed by the defendant at the request of Gordon directly to Lynes. Plaintiffs upon hearing of these transactions demanded a commission but the defendant refused to pay the same. Defendant denied making any contract with plaintiffs to sell the land, testifying that the conversation wherein 1919. If Gordon did not take the farm, he agreed to plaintiffs claimed that the land was listed for sale with them did not consist of the matters claimed by plaintiffs but that defendant did nothing more than attempt to sell the land to plaintiffs who came to him to see about buying it for themselves. Gordon, on behalf of defendant, testified that plaintiff Clay Schwabe talked to him about the land but that he was not particularly interested in it at the time and that, afterwards, seeing an advertisement in a newspaper, inserted by defendant, he entered into negotiations with defendant for the land, which resulted in his buying the same.

Plaintiffs complain of defendant's instructions Nos. 2, 3 and 5. Defendant's instruction No. 2 told the jury that unless they found that Gordon purchased defendant's farm and "that the purchase of said farm by the said Gordon was the result of the efforts of plaintiffs in that behalf, and that said Gordon was influenced to purchase said farm by plaintiffs, then your verdict must be for the defendant." Defendant's instruction No. 3 told the jury that they could not find a verdict for the plaintiffs unless they found "that plaintiff procured or found a purchaser in the person of Marshall Gordon, and that said Marshall Gordon was influenced to purchase, and did purchase, said farm as the result of the solicitation or efforts of plaintiffs." Defendant's instruction No. 5 told the jury that they must find that defendant contracted with plaintiffs to sell the land, and that if they found there was no such contract they should find for the defendant, even though Gordon "was first informed of the fact that defendant's farm was for sale by plaintiffs, and began negotiations for the purchase of said farm as the result of the solicitations of plaintiffs, and was influenced to purchase said farm by said plaintiffs." The first objection to these instructions is that they not only required, "That the purchase of the farm by Gordon was the result of the efforts of plaintiffs, but adds, 'and that said Gordon was influenced to purchase said farm by plaintiffs.' This certainly conveyed the idea to the jury that plaintiffs must not only procure a purchaser, but they must personally exert an influence upon the purchaser during the negotiations."

What a broker is required to do to earn a commission is well settled. In the case of Crane v. Miles, 154 Mo.App. 338, 348, it is said:

"The law is well-established in this State that to entitle a real estate broker to his commission he must be the efficient cause in finding a purchaser; that it is not sufficient that the act of the broker was one of a chain of causes bringing about the sale, but in order for the broker to recover for his services, his act or acts must have been the procuring or inducing cause, and the burden is...