Stanley v. Whitlow

• Decision Date: 06 July 1914
• Docket Number: No. 11109.,11109.
• Citation: 168 S.W. 840,181 Mo. App. 461
• Parties: STANLEY et al. v. WHITLOW et al.
• Court: Missouri Court of Appeals

168 S.W. 840

181 Mo. A. 461

STANLEY et al. v. WHITLOW et al.

No. 11109.

Kansas City Court of Appeals. Missouri.

July 6, 1914.

1. BROKERS (§ 40) — COMPENSATION — RIGHT TO.

Where defendants requested real estate brokers to find a farm for which they could trade their property, and the brokers procured an exchange, they are entitled to a commission under an implied contract, though there was no agreement to pay a commission.

2. BROKERS (§ 88) — COMPENSATION — ACTIONS — EVIDENCE.

In an action by real estate brokers for compensation for procuring an exchange, the question whether they were entitled to recover on an implied contract on a quantum meruit held, under the evidence, for the jury.

3. CONTRACTS (§ 346) — ACTIONS FOR BREACH — PLEADING — PROOF — VARIANCE.

One cannot declare upon an express contract and then recover upon a quantum meruit.

4. BROKERS (§ 82) — COMPENSATION — ACTIONS — PETITION.

A petition by real estate brokers seeking a recovery of commissions in effecting an exchange, which alleged that defendants, the owners of real estate, requested plaintiffs to assist them in trading the land, and agreed to pay plaintiffs a reasonable sum for their services, and that plaintiffs performed services which were reasonably worth a stated sum, declares upon a quantum meruit.

5. HUSBAND AND WIFE (§ 213) — MARRIED WOMEN — RIGHTS OF.

Rev. St. 1909, § 1753, provides that a married woman may sue and be sued with or without joining her husband, and section 8304 makes her a feme sole so far as to enable her to contract. Section 2769 provides that contracts which by the common law are joint shall be construed as joint and several, and section 2772 provides that in all cases of joint obligations suits may be brought against any one or more of those who are liable. Held that, where a wife joined with her husband in requesting brokers to effect an exchange of land owned by the husband and wife, the wife is not an improper party in an action by the brokers for their commissions.

6. HUSBAND AND WIFE (§ 238) — ACTIONS BY OR AGAINST — RIGHT TO NONSUIT — JUDGMENT.

In an action by brokers to recover commissions for effecting an exchange of land, where the brokers joined the landowner's wife as a defendant, a failure to prove that she was bound on the contract is not, under Rev. St. 1909, § 1981, ground for nonsuit, and the brokers may have judgment against the husband alone.

Appeal from Circuit Court, Pettis County; H. B. Shain, Judge.

Suit by W. O. Stanley and others against S. G. Whitlow and another. From an order denying their motion to set aside an involuntary nonsuit, plaintiffs appeal. Reversed and remanded.

Sangree & Bohling and W. G. Lynch, all of Sedalia, for appellants. W. D. Steele, of Sedalia, for respondents.

TRIMBLE, J.

Suit for commission by real estate brokers. The evidence tended to show that plaintiffs were real estate brokers; that they owned several farms, one of which was in Pettis county, and another in Cooper; that they advertised the Pettis county farm for exchange for property in Sedalia; that defendants owned some lots in Sedalia and 10 acres near there; that defendants saw plaintiffs' advertisement and called the latter up by phone in reference thereto; that plaintiffs told defendants that, if they traded a farm they owned themselves to defendants, no commission would be expected, but that, if they succeeded in getting a trade for defendants for a farm they did not own, they would expect a commission; that plaintiffs thereupon showed defendants one of their own farms, but it did not suit defendants; that several other farms were submitted to defendants by plaintiffs for exchange, but defendants declined to consider them, and made no inspection thereof. Defendants thereupon told plaintiffs, "You find us a farm in Cooper county, and we will be easy to trade with." Plaintiffs told defendants they owned no other farm in Cooper county except the one they had showed them, but which did not suit. Plaintiffs went to look at a farm near Sweet Springs in said county and submitted it to defendants, but that did not suit them. About August 5, 1912, plaintiffs, learning of a farm in Cooper county owned by a man named Gentry, who desired to trade it for Sedalia property, got a description of it and took it to defendants. The latter were favorably impressed, and arrangements were made for defendants and one of the plaintiffs to go and inspect the farm the next day. They did so. Plaintiffs did not represent Gentry in the negotiations that followed, but represented defendants. Acting for defendants, plaintiffs submitted a proposition from defendants upon which they would trade. This was finally accepted by Gentry, and a trade was made; plaintiffs assisting defendants in drawing the contracts and deeds and otherwise consummating the exchange. In the trade defendants' property was valued at $9,500. The evidence tended further to show that the...