Spears v. Carter

• Decision Date: 17 February 1930
• Citation: 24 S.W.2d 717,224 Mo.App. 726
• Parties: JAMES SPEARS ET AL., RESPONDENTS, v. JAMES L. CARTER, APPELLANT
• Court: Kansas Court of Appeals

24 S.W.2d 717

224 Mo.App. 726

JAMES SPEARS ET AL., RESPONDENTS, v. JAMES L. CARTER, APPELLANT

Court of Appeals of Missouri, Kansas City

February 17, 1930

Appeal from Circuit Court of Jackson County.--Hon. Willard P. Hall Judge.

AFFIRMED.

Judgment affirmed.

Fairchild & Fulton and Nourse & Bell for respondents.

Kenneth W. Tapp for appellant.

ARNOLD J. Bland, J., concurs. Trimble, P. J., absent.

OPINION

ARNOLD, J.

This is an action to recover a real estate broker's commission. Plaintiffs, a copartnership, were engaged in business as real estate brokers, under the firm name of Kansas Realty Company, having their office and principal place of business at Fort Lauderdale, Florida. Defendant is a resident of Jackson County, Missouri.

There seems to be no dispute as to the material facts in the case which may be stated briefly as follows: On September 3, 1925, defendant wrote the following letter to plaintiffs:

"Kansas City, Mo., 9/3/25

"Kansas Realty Co.,

"Fort Lauderdale, Fla.

"Dear Sirs:

"I own the following seventeen lots in Fort Lauderdale, being in Progresso. Same are all title perfect, abstracts just brought to date, free and clear of all taxes. Will sell only altogether. Am offered much more than my price for the lots individually.

"My price for 30 days is $ 10,500 net to me, all cash, $ 2,000 binder, 30 days to close.

"(Listing lots by number and size.)

"Wire me if you sell.

"Very truly,

"(Signed) JAS. L. CARTER."

On September 11th, plaintiffs telegraphed defendant as follows:

"Have offer ten thousand five hundred net cash for seventeen Progresso lots if hundred dollar binder close in thirty days purchaser responsible not speculating on binder recommend acceptance answer.

"KANSAS REALTY CO."

To which defendant replied on the same date:

"Kansas Realty Company,

"Ft. Lauderdale, Fla.

"Accept ten thousand five hundred cash net but require five hundred binder.

"CARTER AND CARTER."

Thereafter plaintiffs sent the following message:

"Ft. Lauderdale Fla., Sept. 14, 25

"Carter and Carter,

"401 Comm Bldg K. C. Mo.

"Sales agreements signed on Progresso lots mailing same to you.

"KANSAS REALTY CO."

The sales agreements (in triplicate) mentioned in plaintiffs' telegram of September 14, 1925, were forwarded with the following letter:

"Fort Lauderdale, Florida,

"September 12th, 1925

"Carter & Carter

"Kansas City, Mo.

"Gentlemen:

"Enclosed you will find contracts in triplicate on the sale of your seventeen lots in Progresso, Fla.

"You will please sign same and return to Ft. Lauderdale Bank & Trust Co., together with abstracts and sight drafts for the six hundred dollars on the Ft. Lauderdale Bank & Trust Co.

"Our mail is so congested at this place that it might be well for you to send this mail special delivery.

"Enclosed you will find statement from the bank that the six hundred dollars is on deposit at their bank and draft for that amount will be honored by them. Said draft is binder on the seventeen Progresso lots.

"Yours very truly,

"KANSAS REALTY CO.

"Per J. H. DYER."

On the bottom of the foregoing letter appears the following pen and ink notation:

"We are enclosing blank warranty Florida form, two witnesses are required to signatures.

"J. H. D."

The sales agreement referred to is rather long, but as its proper construction is the basis of this suit, we deem it best to set it out in full, as follows:

"Agreement of sale

"Ft. Lauderdale

$ 600 Florida Sept. 12th, 1925.

"Received of E. D. Fox six hundred and no/100---Dollars, as a deposit for an option which, if accepted by the owner, is to apply as part payment on the purchase of the following property:

(Description of lots.)

"The full purchase price of same being twelve thousand and no/100 dollars, to be paid as follows:

"Six hundred dollars cash in hand, the receipt of which is hereby acknowledged. Balance eleven thousand four hundred, due and payable on or before October 12th, 1925.

"Purchaser to assume taxes or assessments subsequent to---. Interest at---per cent, payable---.

"It is understood and agreed that the present owner shall furnish an abstract showing good, marketable title when deed of conveyance is given and purchaser has completed his payments as above specified.

"It is also understood that this property is purchased and sold subject to all the restrictions and provisions ordinarily contained in the regular form deed or contract for deed of the subdivision in which it is located.

"In the event the purchaser shall fail to comply with his part of this agreement within thirty days from date hereof, this deposit shall be forfeited as liquidated damages and used for benefits of the party of the first part as rent.

"If the present owner does not approve of the terms of this contract, or other terms agreeable to both parties, or if he cannot furnish good title to the above property, or if for any reason same cannot be delivered in a reasonable length of time, this deposit shall be returned to the purchaser.

"It is agreed between the parties to this contract that the seller is to furnish two abstracts together showing title to the above described 17 lots.

"By

"I hereby agree to purchase the above described property on the terms and conditions above mentioned.

"Signed in the presence of:

"(Signed) J. M. PIRTLE, witness.

"(Signed) J. L. SEGER, witness.

"(Signed) E. D. Fox, (Seal)

"Purchaser.

"---(Seal)

"Purchaser.

"We hereby approve the above mentioned sale and agree to pay to Kansas Realty Co., the sum of fifteen hundred & no/100 dollars, out of the first cash payment as commission for making said sale.

"Signed in the presence of:

"---witness,

"---witness.

"---(Seal)

Owner

"---(Seal)

Owner

"Strange Printing Co., Miami, Fla."

The copies of this agreement, together with blank form of deed, were received by defendant, but he did not execute them. On September 25, 1925, plaintiffs wired defendant as follows:

"Carter & Carter,

"Kansas City, Missouri.

"When may we expect abstract and contract 17 lots Progresso. Wire answer.

"KANSAS REALTY COMPANY."

To which defendant replied:

"Kansas City, Mo., Sept. 25, 1925.

"Kansas Realty Co.,

"Ft. Lauderdale, Fla.

"Seventeen Progresso lots sold letter follows. Can positively deliver four lots number forty block three thirty number three block one eighty seven number forty four block one eighty five number ten block one fifty five all for twenty eight hundred net to me five per cent binder until Tuesday wire collect.

"CARTER & CARTER."

It is agreed that only the first line in the last mentioned telegram has any reference to the lots in issue in this case. On the same date defendant wrote plaintiffs the following letter:

"Kansas City, Mo., September 25, 1925.

"Kansas Realty Co.,

"Third & Andrews, Ft. Lauderdale, Fla.

"Gentlemen:

"Wish to acknowledge receipt of your letters and papers regarding the sale of the 17 Progresso lots. Please be advised that the same are now under contract and a binder in my hands, a deal which I consummated before receiving your papers. I am sorry that I did not hear from you as the closing date appealed to me, although I have not got the abstracts yet. My contract calls for closing ten days after presentation of abstract to the buyer and if anything should cause this to fall thru, I will immediately wire you and you can get busy with your buyer again.

"Wish to thank you for your courtesy in the matter and promise that I will give you the first opportunity to sell the property again providing the present sale does not consummate.

"Very truly yours,

"CARTER & CARTER, Relators,

"BY JAS. L. CARTER."

On September 26th, plaintiffs wrote defendant:

"Carter & Carter,

"401 Commerce Bldg.,

"Kansas City, Mo.

"Over your signature of Sept 3d you owned seventeen lots Progresso net to you ten thousand five hundred dollars. Your telegram Sept. tenth accept offer ten thousand five hundred dollars cash net, require five hundred dollars binder. September twelfth mailed contract to you with instructions to draw binder Ft. Lauderdale bank. We and purchaser demand delivery.

"KANSAS REALTY CO."

It appears from the record that after waiting awhile plaintiffs tried to protect themselves and the alleged purchaser, Fox, by filing a lis pendens against the lots. Thereupon this suit was instituted.

The petition is more or less formal, and charges the listing by defendant of the lots in question at the price of $ 10,500 net to defendant; that within a few days after the real estate described in the petition was listed and placed with plaintiffs for sale, plaintiffs sold the property for the sum of $ 12,000 cash and sent defendant a telegram offering him the sum of $ 10,500 cash. The petition further alleges that pursuant to defendant's telegram accepting said sum of $ 10,500 cash, net to defendant, plaintiffs prepared sales agreements which they forwarded by mail to defendant at Kansas City Mo.; and that defendant failed, neglected and refused to sign said agreements and failed, neglected and refused to sell, transfer and convey the aforesaid real estate to the purchaser whom plaintiffs had procured who had agreed and was willing, able and ready to pay the sum of $ 12,000, for the real estate therein described. Judgment is asked in the sum of $ 1500, being the difference between $ 10,500 and $ 12,000, for which plaintiffs claim to have sold the property. Attached to the petition as exhibits are defendant's letter of September 3, 1925, listing the property for sale, and defendant's telegram of September 11, 1925, accepting the offer of sale at $ 10,500 and requiring a binder of $ 500, instead of $ 100 as contained in...