Stewart v. Chittick

• Decision Date: 14 June 1920
• Docket Number: No. 13407.,13407.
• Parties: STEWART v. CHITTICK.
• Court: Missouri Court of Appeals

222 S.W. 863

STEWART v. CHITTICK.

No. 13407.

Kansas City Court of Appeals. Missouri.

June 14, 1920.

Appeal from Circuit Court, Livingston County; Arch B. Davis, Judge.

"Not to be officially published."

Action by Douglas Stewart against Smith Chittick. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Frank Sheetz, of Chillicothe, for appellant.

Joseph Stewart and L. A. Martin, both of Chillicothe, for respondent.

ELLISON, P. J.

This action was instituted by plaintiff to recover a commission for selling defendant's farm of 60 acres. The former recovered judgment.

It appears defendant resides in the state of Arizona, and that one Martin was his tenant on the farm; that defendant put the place in plaintiff's hands in December, 1915, for sale at $50 per acre the sale to be made "soon." Afterwards defendant's wife concluded she would not sell and would not sign a deed. Defendant then notified plaintiff of his wife's refusal. Plaintiff negotiated a sale to Martin at $53 per acre.

Plaintiff's account of the transaction is as follows:

"I sold the land to Mr. David Martin and entered into a contract with him at $53 an acre, and so notified Mr. Chittick, and sent a deed for him and his wife to sign, and before that deed was returned a deed was placed on record here from Mrs. Chittick to Smith Chittick, and Mr. Chittick wrote to me that his wife had deeded to him her interest in the land and she would not sign any deed. So I said, `Well you can sign the deed and send it here and I will take it without her signature;' and I advised Mr. Martin that that could be fixed all right, that I had a mortgage on the place, and that I would just foreclose the mortgage, and in that way get him a good title, as Mrs. Chittick had signed that mortgage. The deed was sent here to Mr. Sheetz [defendant's attorney] and Presented to Mr. Martin and myself in my office, and Mr. Martin wanted to have the title examined. He took the abstract, I think, to Mr. Schmitz to have it examined and went home; and afterwards Mr. Sheetz [defendant's attorney] telephoned me that he would have to return it, something of that kind; and, as I understood, the deed was returned, and that is as far as it went."

Before defendant had sent the deed to Mr. Sheetz, signed by himself alone, plaintiff had written to him the following letter:

"In reply to your last letter, you say you want to do what is fair. There is only one thing to do, and that is to sign that deed and send it back here. I sold the land to Mr. Martin and made a contract and sent you the deed. I had your authority to sell it. I had been trying for seven or eight months to induce Mr. Martin to take it, and finally succeeded. Any communication between Mr. Martin and you about the matter does not affect my action. The sooner we get the deed back here the quicker your interest stops on the loan. I am quite sure that no one else would accept your deed signed just by yourself except me. I have talked that phase of the matter over with Mr. Martin and have shown him how I can correct it. Now sign the deed...