Smith v. Crane

• Decision Date: 03 March 1913
• Citation: 169 Mo. App. 695,154 S.W. 857
• Parties: SMITH v. CRANE et al.
• Court: Missouri Court of Appeals

154 S.W. 857

169 Mo. App. 695

SMITH v. CRANE et al.

Springfield Court of Appeals. Missouri.

March 3, 1913.

Rehearing Denied March 27, 1913.

1. CONTRACTS (§ 170) — CONTEMPORANEOUS CONSTRUCTION.

Where the parties to a contract have treated it as one subject to construction aliunde, the courts will consider the construction placed thereon by the parties themselves by words and conduct as of more importance than an abstract meaning that the court might attach to it by reason of mere phraseology.

2. CONTRACTS (§ 176)—CONSTRUCTION—EXTRINSIC UNCONCEDED FACTS—QUESTION FOR JURY.

Where a contract contains ambiguous phrases and its construction depends on extrinsic unconceded facts, its proper construction is for the jury.

3. BROKERS (§ 88)—SALE OF LAND—DIVISION OF COMMISSIONS—CONTRACT—INSTRUCTIONS.

Where a contract provided that in case of a sale of land pursuant to an option to sell, to be obtained from R., defendants would pay plaintiff's intestate $2,500, and it was shown that a sale of two undivided sixths of the land had been made after the option had expired, it was error to refuse to charge that if no sale of any part of the land was made under the option, and it was agreed between intestate and defendants that the sale of such undivided interest was not to be treated as a sale by defendants so as to render them liable under the contract, and, notwithstanding such sale, it was agreed that intestate should receive the compensation provided for out of the sale of the remaining two-thirds interest pursuant to a new option, then the jury should find for defendants.

4. BROKERS (§ 88)—SERVICES—SALE OF LAND —CONTRACT—INSTRUCTIONS.

A contract for intestate's services in assisting in procuring an option on certain land and in selling the same provided that defendants agreed in case of a sale to pay intestate $2,500 and certain other expenses, and that the contract would be void if no deal was made by defendants or their associates. Held, that instructions construing the contract as an agreement to pay intestate to assist in getting an option and "rendering other service in consummating a sale" of the land or a part thereof, etc., were erroneous, as assuming an obligation on intestate not contained in the contract, and as assuming that the "other service" referred to in the contract meant consummating a sale.

5. CONTRACTS (§ 237)—MODIFICATION.

Where a new arrangement was substituted for a prior contract for payment to intestate of a specified sum for assistance in procuring an option on certain land, the change being contemporaneous with a sale of an undivided sixth interest in the land and the taking of a new option in escrow to one of the defendants, the mutual promises of the parties incident to such new arrangement would be a sufficient consideration therefor.

6. BROKERS (§ 85)—ACTION FOR COMPENSATION —EVIDENCE.

Where in defense of an action on a contract to pay plaintiff's intestate a specified sum on the sale of certain land for intestate's services in procuring an option and other service with reference to the land, it was claimed that no commission was to be paid for a sale of a sixth interest, and that the payment to intestate should be made after the remaining interest was sold, evidence of the wife of the owner of the land that at the time the papers were prepared for the sale of the sixth interest it was agreed that no commissions should be due on account of that deal was admissible.

Appeal from Circuit Court, Jasper County; Joseph D. Perkins, Judge.

Action by James L. Smith, as administrator of C. J. Smith, deceased, against W. S. Crane and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Thomas & Hackney, of Carthage, for appellants. McReynolds & Halliburton, of Carthage, for respondent.

ROBERTSON, P. J.

This suit was brought by the respondent as the administrator of the estate of Carey J. Smith, deceased, to recover the sum of $2,500 alleged to be due on the following contract as set out in his petition: "Carthage, Mo., Oct. 29, 1910. In consideration of C. J. Smith service in assisting in getting option & other service on Jesse Richardson on his 112 acres land on which the Quick Seven mines are located in Jasper Co., Mo., we the undersigned hereby agree that in case of a sale of said land or any part thereof by W. S. Crane, H. E. Gerke or their associates time unlimited to pay to C. J. Smith of Carthage, Mo., or his successors the sum of ($2500.00) twenty-five hundred dollars in cash when the deal is made and we further agree to pay all bills & notes & expenses that has been made on this deal by either W. S. Crane, H. E. Gerke or C. J Smith, and all future expense may be made hereafter including the $600.00 to Cunningham Nat. & C. Above contract void if no deal is made by either of us or our associates. W. S. Crane. H. E. Gerke." The judgment below was for the plaintiff, and the defendants have appealed.

Prior to the date of the above contract various options had been given to C. J. Smith and the defendants, or to some of them, by Richardson, but all of the options had expired prior to the transaction hereinafter discussed, and the one upon which the plaintiff based his right to recover in this case. C. J. Smith, one of the parties to the above contract, was dead at the date of the trial, and the other two parties were by reason thereof disqualified from testifying. Neither Smith, Crane, nor Gerke owned any interest in the land referred to in the contract, and it is apparent that what may have been meant by a sale of the land by Crane and Gerke is that they should be the procuring and efficient cause of the sale of the land or some portion thereof by Richardson to some one. On November 21, 1910, after all of the options given by Richardson on the land to either Smith, Crane, or Gerke had expired, Smith and Crane went to Richardson's farm, and made arrangments with him to meet them and one Morrison, a prospective purchaser, at a law office in Carthage on the next day. Richardson and his wife, Smith, Crane, and Gerke and Morrison met at said place the next day, and at that time Richardson and wife executed and delivered a warranty deed conveying to said Morrison an undivided one-sixth interest in the land referred to in the above contract, and at the same time Richardson and his wife executed and placed in escrow in a bank in Carthage a deed to defendant Crane for an undivided one-sixth interest in the land, giving him 90 days in which to pay the purchase price and receive a deed; and Richardson and his wife also at that time gave a written option to defendant Crane to purchase the remaining undivided two-thirds interest in the land within ninety days from that...