Springfield Security Co. v. Boren

• Decision Date: 01 September 1925
• Docket Number: No. 3759.,3759.
• Citation: 275 S.W. 566
• Parties: SPRINGFIELD SECURITY CO. v. BOREN.
• Court: Missouri Court of Appeals

275 S.W. 566

SPRINGFIELD SECURITY CO. v. BOREN.

No. 3759.

Springfield Court of Appeals. Missouri.

September 1, 1925.

Appeal from Circuit Court, Greene County; Oren Patterson, Judge.

Action by the Springfield Security Company against Charles Boren. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Alfred Page and Val Mason, both of Springfield, for appellant.

V. O. Coltrane, of Springfield, for respondent.

BRADLEY, J.

This is an action to recover a commission alleged to have been earned by a real estate agent. The cause was filed in a justice of the peace court, and, after trial and judgment there, was appealed to the circuit court. At the close of the case in the circuit court a peremptory direction was given to find for plaintiff, and, in accordance with the direction, the jury returned a verdict for plaintiff for $56.25, the amount sued for. Motion for a new trial was filed and overruled, and defendant appealed.

Plaintiff had an agreement with defendant whereby plaintiff had for sale defendant's lot in Dreamwold Place, Springfield, Mo., for $1,250 cash, and was to receive as a commission the sum of $56.25 if he found a buyer for cash at that price. Such was the contract according to both plaintiff and defendant.

Plaintiff presented for defendant's signature the following proposed contract, signed by the prospective purchaser:

"Contract.

"This contract, made and entered into by and between Charles Boren, party of the first part, and A. A. Alford, party of the second part, witnesseth:

"Party of the first part agrees to sell lot No. one (1) Dreamwold Place, an addition to the city of Springfield, Mo., to party of the second part for the price and sum of twelve hundred fifty and no/100 dollars ($1,250) cash, and further agrees to furnish abstract showing merchantable title and convey the property by warranty deed, free and clear of all incumbrances except taxes due and payable in the year 1924 and thereafter.

"Party of the second part accepts this proposition and herewith delivers to party of the first part one hundred and no/100 dollars ($100) earnest money to bind this contract, the receipt which is hereby acknowledged, the said earnest money to be applied on the purchase price when the deal is closed.

"This deal shall be closed not later than thirty days after date.

"Signed in duplicate this 15th day of June,

                1923.                         _________
                                             "A. A. Alford."
                

When this contract was presented, defendant looked it over and told plaintiff's representative, Miller, that he could not sell the place clear of incumbrance; that there was a $600 mortgage against it. After that there was some effort made by Miller to close the sale on terms respecting the mortgage, bid this was not successful.

The contract presented required defendant to furnish an abstract and also gave 30 days' time for the payment of the remaining $1,150 of the purchase price. These two provisions were not in the contract between plaintiff and defendant. Plaintiff seeks to avoid these two provisions on two theories: (1) That defendant tacitly agreed in the first instance that he would furnish an abstract and wait 30 days; and (2) that he waived the right to stand on these conditions in the contract presented to him. There is nothing in the record tending, even remotely, to show that defendant agreed to furnish an abstract and wait 30 days for any part of the payment of the purchase...