Thomas J. Johnson & Co., Inc., v. Mueller
| Decision Date | 13 October 1947 |
| Docket Number | No. 40474.,40474. |
| Citation | 205 S.W.2d 521 |
| Parties | THOMAS J. JOHNSON and COMPANY, Inc., (plaintiff) appellant, v. MARIE E. MUELLER, (defendant and third party plaintiff), appellant, v. JOSEPH R. ROBISON and HILDA E. ROBISON, his wife, (third party defendants). |
| Court | Missouri Supreme Court |
Appeal from Jefferson Circuit Court. — Hon. Edward T. Eversole, Judge.
AFFIRMED.
Edward C. Schneider and R.E. Kleinschmidt for plaintiff-appellant.
(1) The court erred in sustaining defendant's motion to make Joseph R. Robison and Hilda E. Robison, his wife, third-party defendants, because the wife did not sign the sales contract, either in person or by agent, on which the motion was based. The sustaining of the motion was also erroneous as to the husband, because the motion showed on its face that such third party could not possibly be "liable to him (her) or to the plaintiff for all or part of the plaintiff's claim against him (her)." Laws 1943, pp. 362, 363, sec. 20. (2) The court also erred in making the said Robison and wife parties herein, because the motion and all the pleadings and the evidence showed that there was no relationship of landlord and tenant claimed or proved. One never has to pay rent except by reason of a contract, express or implied, creating a relationship of landlord and tenant. 35 C.J., pp. 951, 952, secs. 2, 3, 4; Marden v. Radford, 229 Mo. App. 689, 84 S.W. (2d) 947. (3) This court has held that the chancellor's finding in action for specific performance of contract to convey real estate which plaintiff had purchased precluded the defendant's recovery of rent subsequently accruing. In the case at bar, since it was conceded that possession was taken under a contract to purchase the land, the purchaser, Joseph R. Robison, could not have been liable for rent or for fruit removed during his lawful occupancy of the premises. Furrer v. Haupt, 329 Mo. 1089, 49 S.W. (2d) 53. (4) The court erred in not rendering judgment for plaintiff for the 5% commission on sale price of $8500, as well as for the $250 of earnest money paid to defendant, and the $15 expended for supplemental abstract. It is the unquestioned law of this State that when a broker shows that the vendor accepted a purchaser procured by him, as by signing a sale contract, he need go no further in his proof, and it is immaterial whether sale was actually consummated or not, but broker is entitled to his commission. Cook v. Craddock, 109 S.W. (2d) 731; Knisely v. Leathe, 256 Mo. 341, 166 S.W. 257; Axsom v. Thompson, 197 S.W. (2d) 326. (5) A "merchantable" title has been held to be the same as a "marketable" title. Reeves v. Roberts, 294 Mo. 593, 242 S.W. 956; McConnell v. Deal, 296 Mo. 275, 246 S.W. 594. (6) The defendant was estopped, however, to claim that the title was "merchantable" or "marketable," because the certificate of title showed that the LEGAL title was outstanding, and she actually brought a suit to quiet title on that account and obtained a decree therein long after the closing date of the contract and after the filing of this suit for plaintiff's commission. (7) But even if the title had been perfect, and it was not, and even if the defendant had not been estopped to claim that it was merchantable, and she was, she still would have had no ground for specific performance as such a decree would not be equitable under the circumstances. McQuary v. Missouri Land Co., 230 Mo. 342, 130 S.W. 325; Kyner v. Bryant, 353 Mo. 1212, 187 S.W. (2d) 202; Hollmann v. Conlon, 143 Mo. 369.
Matthes and Thurman for defendant and third-party plaintiff-appellant.
(1) It was the duty and obligation of plaintiff as the agent of defendant to faithfully represent her in the sale of defendant's farm, and to exercise reasonable skill and ordinary diligence in its representation of defendant; the conduct of plaintiff as shown by record, in not being faithful and loyal to defendant, deprived plaintiff of its right to recover commission, and judgment of Court in that respect was proper. 9 C.J. pp. 536, sec. 38; Myers v. Adler, 176 S.W. 538; Van Raalte v. Epstein, 202 Mo. 173. (2) Plaintiff forfeited its right to recover commission from plaintiff because of its conduct, through Mr. Johnson, in representing Robisons the purchasers, as well as defendant, the seller, without making full disclosure of such dual representation to defendant. The rule has been clearly announced in this state, that if real estate broker acts for both seller and buyer, he will be denied recovery of his commission, unless full disclosure of dual agency is made. Nahn-Heberer Realty Co. v. Schrader, 89 S.W. (2d) 142; Luikert v. Miller, 48 S.W. (2d) 867; Windsor v. International Life Ins. Co., 29 S.W. (2d) 1112. (3) The court erred in failing to render a decree compelling specific performance of the sale contract for the reason that the title to the premises involved was merchantable. Danzer v. Moerschel, 214 S.W. 849; Aker v. Lipscomb, 253 S.W. l.c. 997; Reeves v. Roberts, et al., 242 S.W. l.c. 957; Black's Law Dictionary, p. 1180. (4) Under the sales contract defendant was required to furnish a merchantable, not a perfect title, and under the well established law, the title was merchantable, since the defect complained of occurred more than 40 years prior to time of sale, and was cured by statute of limitations. Sec. 1002, R.S. 1939.
This is a combined original and third party action under Sec. 20 of the Civil Code.1 The causes were tried in equity and the appeal has been lodged here on the ground that title to real estate is involved in the third party action. The principal questions to be decided are: whether the original plaintiff-appellant, an incorporated realtor, represented the original defendant with undivided fidelity in securing a purchaser and effecting a sale of real estate for the original defendant-appellant; whether the latter had a merchantable title to the land; and whether the trial court erred in permitting the original defendant as third party plaintiff to implead the contract purchaser of the land, and his wife, as third party defendants.
In the original action the plaintiff realtor sued the original defendant, Mrs. Marie E. Mueller, for $690, the items of which were: a $425 real estate commission of 5% for securing a purchaser for her 90 acre farm in Jefferson county at the price of $8500; plus $15 advanced for extending the abstract of title; plus $250 refunded by the plaintiff realtor to the purchaser, Joseph R. Robison, out of $500 earnest money the latter had paid down. This refund was made after the sale had failed to go through.
The plaintiff contended it was entitled to recover, notwithstanding the sale was not consummated, on the ground that the failure was the fault of the original defendant, Mrs. Mueller, in that she failed to deliver a warranty deed within the time prescribed by the written contract of sale between her and the purchaser, and because her title was not merchantable in fact and law.
The original defendant Mueller contended: that she did have a merchantable title; that she was at all times ready, able and willing to perform the sale contract; that the plaintiff realtor did not represent her with undivided fidelity, though she alone was paying the commission; but on the contrary without her knowledge actually represented the purchaser also, and wrongfully told the latter her title was not merchantable in consequence of which he refused to take the farm; and that the plaintiff realtor furthermore permitted the purchaser, Robison, to appropriate valuable fruits grown on the farm while he was in possession thereof through the summer of 1945, and then to move off without paying for them.
After the defendant Mueller had filed her original answer, she filed a motion for leave to implead the purchaser and his wife, Hilda E. Robison (who was not a party to the sale contract), as third party defendants. That motion was sustained by the court over the original plaintiff's lengthy suggestions in opposition, and the defendant Mueller as third party plaintiff thereupon filed her third party petition in two counts against the Robisons. Both counts alleged her ability to perform the sale contract and that she had always had a merchantable title. The second count alleged additionally that the Robisons had been in possession of the farm and gathered fruits therefrom worth $750. The prayer of both counts was for specific performance, and payment of the balance of the purchase price. The second count prayed alternatively that if that relief be denied, she be awarded $750 damages for the fruits taken.
The third party defendants Robison answered denying liability and contending: that the defendant Hilda Robison was not a party to the contract of sale and should not have been impleaded; that the defendant Joseph R. Robison, with his wife as a member of his household, was entitled under the contract to possession of the farm and growing fruits; that no deed conveying a merchantable title was ever tendered by the third party plaintiff, Mrs. Mueller; that on the contrary the original plaintiff realtor was the third party plaintiff's agent, not Robison's, and as such informed Robison the title was not merchantable and that it would be necessary to bring a quiet title suit which would take two or three months more; that the defendant Robison thereupon demanded and received back his $500 earnest money, moved off the farm and bought another.
The original plaintiff realtor refunded the entire $500, although $250 of it had already been paid to the original defendant-third party plaintiff, Mrs. Mueller. The $250 item in the original suit represented that money.
The sale contract in part provided as follows (parentheses ours): ...
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