Tant v. Gee

• Decision Date: 25 October 1941
• Docket Number: No. 37519.,37519.
• Citation: 154 S.W.2d 745
• Parties: JOHN TANT v. E.B. GEE, Appellant.
• Court: Missouri Supreme Court

154 S.W.2d 745

JOHN TANT v. E.B. GEE, Appellant.

No. 37519.

Supreme Court of Missouri.

Division Two, October 25, 1941.

Appeal from New Madrid Circuit Court. — Hon. L.H. Schult, Judge.

REVERSED AND REMANDED (with directions).

R.F. Baynes for appellant.

(1) Plaintiff was not entitled to any commission on the Clark transaction. (a) There not having been a compliance with the contract of purchase entered into with Clark. Young v. Stecher Cooperage Works, 168 S.W. 611; Gibson v. Pleasant Valley Dev. Co., 8 S.W. (2d) 828; Cox v. Bowling, 54 Mo. App. 289; Hughes & Thurman v. Dodd, 164 Mo. App. 454; Burdett v. Parish, 172 S.W. 620; Jennings v. Overholt, 172 S.W. 449. (b) It was plaintiff's (respondent's) duty to have notified appellant of the fact that Clark had said he would purchase the land for the price and terms stated, but that he was going to try to get the price reduced, as it was plaintiff's (respondent's) duty to act with entire good faith and to disclose all facts within his knowledge material to the matter, or which might influence principal's action. The fact plaintiff (respondent) did not disclose these facts was bad faith and, if he had been entitled to commission, it was forfeited. Joy v. Bixby, 10 S.W. (2d) 342; Klien v. Terminal Railroad Assn., 268 S.W. 660; Johnson v. McCluney, 80 S.W. (2d) 898; Haven v. Tarter, 124 Mo. App. 691. (2) Plaintiff was not entitled to any commission whatsoever on the Tistadt transaction for the reason Tistadt never complied with his contract and there was never any monies collected. Young v. Stecher Cooperage Works, 168 S.W. 611; Gibson v. Pleasant Valley Dev. Co., 8 S.W. (2d) 828; Cox v. Bowling, 54 Mo. App. 289; Hughes & Thurman v. Dodd, 164 Mo. App. 545; Burdett v. Parish, 172 S.W. 620; Jennings v. Overholt, 172 S.W. 449.

Merrill Spitler and Ward & Reeves for respondent.

(1) Where property is placed in the hands of a broker for sale at fixed price and sale is brought about through broker as procuring cause, he is entitled to commissions on sale, even though final negotiations are conducted through owner and owner accepts price less than that stipulated to broker or on different terms. Baley v. Hercules, 22 S.W. (2d) 855; Bopp v. Jetama Inv. Co., 231 Mo. App. 815, 96 S.W. (2d) 877; Bowman v. Rahmoeller, 331 Mo. 868, 55 S.W. (2d) 453; Harvey v. Francisco, 35 S.W. (2d) 366; Maxwell v. Rositzky, 167 Mo. App. 573; Real Estate Co. v. Epstein, 157 Mo. App. 101; Jennings v. Overholt, 186 Mo. App. 505. (2) Ordinarily a broker must produce a purchaser who is ready, willing and able to pay for the land; but where the owner makes a valid and binding contract of sale with a purchaser procured by the broker, then such owner thereby accepts the purchaser as ready, able and willing to buy the land and pay for it, and the broker's commission is then earned. Cook Co. v. Craddock-Terry Co., 109 S.W. (2d) 733; Harvey v. Francisco, 35 S.W. (2d) 366; Glassman v. Fainberg, 35 S.W. (2d) 950; Lombard v. Sills, 170 Mo. App. 555. (3) The agency contract provided that Tant would be paid at the rate of $2 per acre for the land he might sell for Gee when the latter collected that amount in cash on the sale. But when the defendant entered into a valid, binding contract of sale with Hugh A. Tistadt for 320 acres of land, and thereafter, by mutual consent and agreement between the parties, the sale contract was canceled and each waived all claims against the other, the defendant could not then defeat the plaintiff's right to recover his earned commission. Knisely v. Leathe, 256 Mo. 341; Vining v. Mo.-La. Oil Co., 312 Mo. 30; Finch v. Guardian Trust Co., 92 Mo. App. 263. (a) "When the agent has put it in the power of the vendor to maintain a suit for specific performance or for damages against the purchaser, then it is up to him to do so and he cannot refuse to pay the agent's commission because of the purchaser's refusal to comply with his contract." Frye v. Warren, 190 Mo. App. 192; Lombard v. Sills, 170 Mo. App. 555; Love v. Owens, 31 Mo. App. 501. (4) The sale of the 320 acres to N.W. Clark by written contract of sale and the making of the warranty deed thereafter by Gee's corporation to N.W. Clark for 160 acres of this land and to C.C. Clark for the other 160 acres and the taking back from each of them notes and deeds of trust to secure the purchase price of $4000 for each parcel, the notes being made due ten years after date, was a completion of the sale on terms not stipulated to Tant, and he was then entitled to his commission; and especially is this true since defendant collected $1800 in cash shortly thereafter from the grantees of N.W. Clark in settlement of his note and deed of trust. Coffman v. Realty Co., 176 Mo. App. 692; Burdett v. Parish, 185 Mo. App. 605; Real Estate Co. v. Epstein, 157 Mo. App. 101. (a) The chancellor was warranted under the evidence to find that the defendant knew at the time he entered into the written contract with N.W. Clark that he had been procured as a purchaser by the plaintiff. But it was wholly immaterial, whether this be true or not. Defendant had given Tant specific authority to sell this particular land and it was his business to know whether Tant had interested Clark in the deal. Millan & Abott v. Porter, 31 Mo. App. 563; McCormack v. Henderson, 100 Mo. App. 647; Schaeffer v. Reineke, 121 S.W. (2d) 213. (b) An owner may lawfully reserve to himself the privilege of selling land he places in broker's hands; but he may not appropriate the broker's customer and accept the broker's services, without paying his commission. Maxwell v. Rositzky, 167 Mo. App. 573. (5) The pleadings make this case one in equity and while this court tries the case de novo, the court will give due deference to the findings of the chancellor who had the witnesses before him and was in a better position to pass upon the credibility of the witnesses and the evidence. Aden v. Dalton, 341 Mo. 454, 107 S.W. (2d) 1070.

BOHLING, C.

John Tant instituted this action against E.B. Gee for the specific performance of a written contract to sell and convey certain described lands in New Madrid County, Missouri, upon, among other things, the payment of $2400, principal amount; plaintiff's petition alleging performance and seeking a credit of $1320 on the aforesaid consideration by reason of alleged real estate commissions earned in connection with the sale of three certain tracts of land in a total sum of $1320, viz., $40 on the sale of a forty-acre tract at the rate of $1 per acre, which credit defendant does not dispute, and $1280 on the sale of two 320-acre tracts — one to Hugh A. Tistadt, the other to N.W. Clark — at the rate of $2 per acre.

[1] The chancellor found the issues and all the issues for the plaintiff and, after adjusting the credits and interest, decreed specific performance, conditioned upon the payment of $1350.55 by plaintiff. Defendant's motion for new trial attacked the whole of the decree and judgment of the court. Defendant prosecuted an appeal to the Springfield Court of Appeals and there, as here, presented only issues questioning the propriety of the credits allowed plaintiff nisi. That court, on the ground title to real estate was involved within the meaning of Art. 6, Sec. 12, Mo. Const., transferred the review proceedings here. [Tant v. Gee (Mo. App.), 146 S.W. (2d) 61.] We have said appellate jurisdiction over the subject-matter is determined upon the record in the trial court at the time the appeal is granted. [State ex rel. Brenner v. Trimble, 326 Mo. 702, 709, 32 S.W. (2d) 760, 762[2]; McGregor v. Gaskill, 317 Mo. 122, 125, 296 S.W. 123, 124[6].] Consult State ex rel. Brown v. Hughes, 345 Mo. 958, 137 S.W. (2d) 544, cited by the Springfield Court of Appeals.

Defendant does not question certain matters of a technical nature in the record. We refrain from mentioning these and take the case as presented.

[2] This is not a case involving the mere listing of real estate with a broker for sale. It involves a special contract of brokerage. The petition, evidence and decree are based on said contract. The contract of purchase and sale between plaintiff and defendant is dated November 12, 1935. It provided, among other things and insofar as here material, for the payment by plaintiff of $2400 ($30 per acre) in six annual installments, with interest from date, the last becoming due November 1, 1941; for the immediate possession thereof by plaintiff and his clearing said land and reducing the same to cultivation, a lien by defendant on one-third of the corn and one-fourth of the cotton to secure the payment of the purchase price; and for the avoidance of the contract upon default in performance by the plaintiff, et cetera. By letter of even date therewith, signed by defendant and addressed to and "accepted by" plaintiff, defendant authorized plaintiff to sell the lands here involved, and others, at $30 per acre; the letter stating, among other things and insofar as material, that defendant would "agree to a sale of said land on the basis that the purchaser make no cash payment at the time of purchase, provided" the customer reduce one-half of the land purchased to cultivation by April 1, 1936, and the balance by April 1, 1937, and pay therefor in specified annual installments, with interest; and conditioned explicitly, among other things, as follows:

"For such sales as you may make in accordance with the above, I agree to give you credit on the land you have purchased from me, at the rate of $1.00 per acre, on such land as you might sell, when and only when I have collected from any given sale the sum of $1.00 per acre and you are not to have any greater credit on your purchase from me, than the total of the cash received by me from sale you might make.

"This is not to be construed as an option to you, and I reserve the right to sell said land myself or to dispose of the same through other agents and I reserve the right to raise the price on said land...