Sills v. Burge

• Citation: 141 Mo. App. 148,124 S.W. 605
• Parties: SILLS et al. v. BURGE et al.
• Decision Date: 10 January 1910
• Court: Court of Appeal of Missouri (US)

124 S.W. 605

141 Mo. App. 148

SILLS et al. v. BURGE et al.

Kansas City Court of Appeals. Missouri.

January 10, 1910.

Rehearing Denied January 24, 1910.

1. BROKERS (§ 84) — ACTIONS FOR COMMISSIONS—BURDEN OF PROOF.

In order to recover commissions for procuring a purchaser for property, the burden is upon plaintiff to show that the owners employed him to procure a purchaser, and that his services were the procuring cause of the sale.

2. APPEAL AND ERROR (§ 1031)—HARMLESS ERROR—RULINGS ON EVIDENCE.

Where the evidence on a material question of fact was so conflicting as to leave it doubtful on which side it preponderated, substantial errors in rulings on evidence will be considered prejudicial and reversible.

3. BROKERS (§ 85) — ACTIONS FOR COMMISSIONS—ADMISSION OF EVIDENCE.

Where the evidence tended to show that a letter written by real estate agents to the owners of property, stating that the brokers would like to talk to the owners about the property as soon as the latter could call, as they had some possible investors in view, and that the owners received and acted upon the letter by sending an agent to discuss the sale of the property, the letter was admissible in an action for commissions for procuring the sale of the property, being the initiatory act which resulted in the brokers' employment.

4. EVIDENCE (§§ 71, 100, 265)—MAILING LETTER.

In an action by a broker for compensation the receipt of a letter by a property owner from real estate brokers, which was part of a broker's contract of employment, could be proved by showing that it was properly addressed, stamped and deposited in the mail, which would raise a presumption that it was received by the addressee, or by the latter's subsequent admissions that he received it, or by circumstances showing that fact.

5. EVIDENCE (§ 71)—PRESUMPTIONS—RECEIPT OF LETTER.

Where there was no evidence that a letter constituting a part of a contract was mailed; that the writer testified that he dictated it to his stenographer and according to the usual course of business it must have been mailed, did not raise a presumption that it was received by the addressee.

6. BROKERS (§ 86)—ACTIONS FOR COMMISSIONS—SUFFICIENCY OF EVIDENCE.

In a broker's action for commissions for procuring the sale of property, evidence held to show that defendants received plaintiff's letter stating that he desired to have defendant call with a view to selling the property.

7. APPEAL AND ERROR (§ 837)—REVIEW.

In determining whether a copy of a letter written by plaintiff addressed to defendant was properly excluded when offered by plaintiff on the ground that the evidence did not show a delivery, the evidence as to delivery of the letter should be viewed from the standpoint of plaintiff's evidence.

8. EVIDENCE (§ 241)—AGENTS—ADMISSIONS.

In an action by brokers against several defendants for commissions for procuring a purchaser for property after plaintiffs had introduced evidence tending to show that one of defendants authorized his son to communicate with plaintiff as to the sale of the property, which action of such defendant was with the knowledge and consent of the other defendants, evidence was admissible as against all of defendants as to statements of the son of such defendant to plaintiffs relating to the sale of the land.

9. PRINCIPAL AND AGENT (§ 23)—RELATION —SUFFICIENCY OF EVIDENCE.

In a broker's action against several defendants for commissions for procuring the sale of realty, evidence held to sustain a finding that one defendant authorized negotiations for the sale by another defendant, and that the latter and his son were the agents of another defendant in the transaction.

10. TRIAL (§ 252)—ACTIONS—INSTRUCTIONS— CONFORMITY TO ISSUES.

In a real estate broker's action for commissions for procuring the sale of land, where there was much evidence to show plaintiffs' employment to make the sale, and that they procured the purchaser, and plaintiffs' evidence did not justify an inference that they abandoned the employment or negotiations with the final purchaser, so that all of those questions were issues, an instruction that, if plaintiffs discontinued further negotiations with the purchaser and defendants afterwards made a sale through another, the jury should find for defendants, was erroneous, as injecting an issue not made by the evidence.

11. TRIAL (§ 194) — INSTRUCTIONS — WEIGHT OF EVIDENCE.

Where, in an action for commissions for procuring the sale of land, there was evidence tending to show that the person whom defendants claimed made the sale was brought into

the action for the purpose of depriving plaintiffs of their commissions, it was error to instruct that there was no evidence that such person was used by defendants to deprive plaintiffs of their commissions.

Appeal from Circuit Court, Jackson County; T. J. Seehorn, Judge.

Action by Albert M. Sills and another against Richard H. Burge and others. From a judgment for defendants, plaintiffs appeal. Reversed and remanded.

Ball & Ryland, for appellants, Peak & Strother, for respondents.

JOHNSON, J.

Plaintiffs, real estate agents in Kansas City, brought this action to recover a commission of $4,500, alleged to be due them on account of the sale of certain real estate in Kansas City belonging to defendants. A trial to a jury resulted in a verdict and judgment for defendants. Numerous errors are assigned by plaintiffs, who bring the case here by appeal. These assignments relate either to the instructions or to rulings on the admission or rejection of evidence. The issue of the employment of plaintiffs as agents to sell the property was warmly contested, as was also the issue of whether or not their efforts were the procuring cause of the sale. Both parties adduced substantial evidence in support of their respective contentions. Material facts disclosed by the evidence of plaintiffs thus may be stated:

Defendants Burge and Mary E. Long, brother and sister, inherited two tracts of land in Kansas City, one of 40 acres, the other of 80 acres. Defendant Robert J. Long is the husband of Mary. In 1899 defendants gave an option to purchase the land to a Mr. Guiona, and he enlisted the services of plaintiffs to aid him in making an advantageous sale. He failed to accomplish his purpose, and the option expired. Plaintiff Sills states that, acting on behalf of his firm, he wrote a letter to defendant Robert J. Long in February, 1900, about the sale of the land, and that a few days later David Long, son of Robert and Mary, called on him in response to the letter. Sills testified: "He [David] said that his father received a letter from us in reference to the sale of the property. I told him that I wanted a price on both the 40 and 80 acres. He said he would see his father and Mr. Burge, and let me know in a day or two. * * * He came in in a day or two and gave me a price * * * of $1,500 per acre for the 80 acres and $2,000 per acre for the 40 acres. He asked me previous to this what the commission would be. I told him 2½ per cent." The letter which plaintiffs claim initiated the transaction was dated February 13, 1900, and was addressed to defendant Robert J. Long. Its contents were as follows: "We would like to talk to you about some of your acre property as soon as you can find it convenient to call at our office, 820 Walnut St. We have parties in view who have some money to invest, and we might be able to sell them some of your property."

Plaintiffs made strenuous and repeated, but unsuccessful, attempts to introduce this letter in evidence, and the refusal of the court to admit it constitutes one of the principal errors assigned. The original letter was not produced, but plaintiffs had a copy and endeavored to lay the foundation for its admission. Mr. Sills...