Stainbrook v. Wilson

• Decision Date: 05 June 1920
• Docket Number: 22,554
• Citation: 190 P. 606,107 Kan. 86
• Parties: DAN STAINBROOK, Appellee, v. A. W. WILSON, Appellant
• Court: Kansas Supreme Court

190 P. 606

107 Kan. 86

DAN STAINBROOK, Appellee, v. A. W. WILSON, Appellant

No. 22,554

Supreme Court of Kansas

June 5, 1920

Decided January, 1920.

Appeal from Linn district court; EDWARD C. GATES, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

REAL-ESTATE AGENTS--Agreement between Two Agents to Divide Commissions--Land Sold--Commission Should Be Divided. Where the owner of a farm offers a commission to a real-estate agent to secure a purchaser for his farm at a stated price and the real-estate agent enters into an agreement with a second real-estate dealer whereby they are to cooperate in effecting a sale of the farm and divide the commission between them, and the second real-estate dealer buys the farm himself from the owner, without the owner's knowledge of the agreement between the real-estate dealers and without knowing that the second real-estate dealer had been induced to become interested in the farm through the agency of the first, and where the owner accordingly abates the price for substantially the amount he would have to pay as a commission and the second real-estate dealer profits accordingly, the latter is liable to the first real-estate dealer for one-half of the commission which they had agreed to divide between them.

John A. Hall, of Pleasanton, for the appellant.

Charles F. Trinkle, of La Cygne, for the appellee.

OPINION

DAWSON, J.:

This was a suit for one-half of a real-estate dealer's commission.

The plaintiff conducted an auto service garage in La Cygne and casually transacted some real-estate business in addition thereto. One C. E. Pollman of La Cygne had a farm of two hundred and fifty-seven and one-half acres near by. Pollman promised to give plaintiff $ 500 as a commission to find a buyer for the farm at $ 65 per acre. In April or May, 1918, the plaintiff met the defendant, another real-estate dealer, and told him about the Pollman place; and according to plaintiff's testimony--

"I had a conversation with Wilson about the place . . . Wilson said he had some buyers for some of this bottom land or thought he could sell some of it and we would divide the commissions. I said that we would look at a place when we come back, we will stop and look at it. We were to divide the commission half and half--50-50. On the way back we stopped and looked at Ed. Pollman's farm, consisting of about two hundred and fifty-seven acres, located about two and one-half miles from La Cygne. We drove through the farm in the car. We talked about the price of the farm, which was $ 65.00 per acre, and I was to get $ 500.00 if we sold it for $ 65.00 per acre. . . . After that Wilson sent two or three or four prospective buyers down to see the farm and he was down himself two or three times, I think. I drove them out to the farm."

In August of the same year the defendant himself bought the farm directly from Pollman for $ 16,000, which was $ 237.50 under the net amount Pollman would have realized if he had received his stated price of $ 65 per acre and if he had been required to pay a commission of $ 500. Pollman testified:

"I first met Mr. Wilson about the first of August . . . Well, Mr. Wilson met me there and asked me if I had a bottom farm for sale. I told him I did and he asked me what I wanted for it; I told him $ 65.00 an acre, and I made the same proposition to Mr. Wilson. Well, he handed me his card before that time showing that he was a real estate man and I made him the same proposition that I made to all the rest of the real estate men around town, that I would give him five hundred dollars if he sold the place. . . . I gave him a written agreement stating that I would take $ 16,232.50, and that agreement was $ 500.00 less than the $ 65.00 an acre. . . .

"Q. What did this item of $ 500.00 represent, that you say you took off? A. It was in accordance with my first proposition that if he sold the place for $ 65.00 an acre, I was to give him $ 500.00. . . .

"Q. Then this item of $ 500.00 deducted from the sale price in your written agreement with the defendant, did represent the commission on the sale of that farm? A. If he sold the farm for $ 65.00 an acre.

"Q. After taking off this item of $ 500.00 the price was reduced to $ 16,232.50, was it not? A. I think that's right."

When Stainbrook learned that defendant had purchased the farm, he demanded from him half the commission. Wilson denied liability.

This action was begun. Stainbrook pleaded the facts, and the testimony in his behalf tended to establish his cause of action. On behalf of Wilson, it was admitted that Stainbrook gave Wilson his first information about the Pollman farm, while Stainbrook was driving Wilson for hire on some land inspection in that community.

Defendant's testimony:

"Q. What is your best recollection as to what he said he wanted? A. I don't remember that he said just exactly the price on it, and I asked him how many acres he had and he said he thought there was about 270 acres, and we drove down there and looked over the farm the best I could, in fact, I didn't take particular note of it, and we came back to La Cygne and I said, 'Mr. Stainbrook, if you will go to the owner of this farm and get a written contract listed at a net price to you, I will try to sell it, I believe I can do it and we will whack up the commission; I can't...