Turner v. Snyder

• Decision Date: 06 December 1909
• Citation: 123 S.W. 1050,139 Mo.App. 656
• Parties: CHARLES L. TURNER, Respondent, v. A. H. SNYDER, Appellant
• Court: Missouri Court of Appeals

123 S.W. 1050

139 Mo.App. 656

CHARLES L. TURNER, Respondent, v. A. H. SNYDER, Appellant

Court of Appeals of Missouri, Springfield

December 6, 1909

Appeal from Jasper Circuit Court.--Hon. David E. Blair, Judge.

AFFIRMED.

STATEMENT.--Plaintiff alleges that defendant agreed to pay him one thousand dollars if he would find a purchaser for certain property in Carthage, owned by defendant, and that he did so but defendant refused to pay. The answer is a general denial. Trial by jury, verdict for plaintiff and defendant has appealed.

Plaintiff's evidence tends to show that in April, 1904, defendant agreed to pay him one thousand dollars to find a purchaser for his beer agency, his interest in an ice plant, and a stone and brick block at the Southeast corner of the public square in Carthage, and that he began negotiations which led to a sale to one A. T. Blackwell, of the beer agency and ice plant in the summer of 1904, and that he then asked for his commission, but defendant refused to pay until the building should also be sold. That plaintiff then continued the negotiations with Blackwell and that he talked to Blackwell and defendant about the deal every thirty to sixty days up to the early part of 1907, when it finally resulted in Blackwell buying the house. Plaintiff again demanded payment of his commission which was refused.

Defendant's evidence tends to prove that defendant did not employ plaintiff to find a purchaser for the property at all, but that in 1904, defendant gave Blackwell & Crane an option on the property for ten days, and that he told plaintiff then that if he could induce Blackwell & Crane to buy the property under the option he would give him a thousand dollars for his services, and that the property was not bought under this option.

Judgment affirmed.

Thomas & Hackney for appellant.

(1) Where the agent is required by the terms of his contract with the principal to furnish the purchaser within a fixed period of time, he must furnish the purchaser within that time. Page & Austin v. C. C. Griffin, 71 Mo.App. 524; LaForce v. Washington University, 106 Mo.App. 517. (2) It is material error to give the the jury conflicting instructions. Edmondson v. Jones, 96 Mo.App. 83; Hoover v. Merc. Town Mutual, 93 Mo.App. 111; Union Bank v. First Nat'l Bank, 64 Mo.App. 253; Jones v. Railroad, 59 Mo.App. 137; Evers v Shumaker, 57 Mo.App. 554; Spillane v. Railroad, 111 Mo. 555; State v. Harrell, 97 Mo. 105. (3) Where erroneous instructions are given for defendant the judgment will be reversed though correct instructions were given for the plaintiff. Dewdorn v. Railroad, 108 Mo. 539; Frank v. Railway, 57 Mo.App. 181; Berryman v Cox, 73 Mo.App. 67; Standard Oil Co. v. Meyer Drug Co., 74 Mo.App. 446. (4) It is a well-settled rule that instructions should be predicated of all the issues raised by the pleadings and supported by the evidence. Turner v. Lowler, 34 Mo. 461; Craft v. McBoyd, 32 Mo.App. 399; Hayner v. Churchill, 29 Mo.App. 679; Condon v. Railroad, 78 Mo. 567; Russell v. Railroad, 26 Mo.App. 368; McDonald v. Railroad, 32 Mo.App. 70; Bailey v. Beasley, 32 Mo.App. 406; State v. Foley, 12 Mo.App. 431; State v. Johnson, 76 Mo. 121; Henry v. Bassett, 75 Mo. 89.

McReynolds & Halliburton for respondent.

(1) The question of what is a reasonable time in this case, is a mixed question of law and fact, to be determined by the jury, under the instructions of the court. Turner v. Snyder, 132 Mo.App. 320; Hinzeman v. Railroad, 199 Mo. 56; Skoop v. Railroad, 93 Mo.App. 609; Skeen v. Springfield Engine & Thresher Co., 34 Mo.App. 497; Osborn v. Marks, 29 Mo. 1; Lynnville v. Welch, 29 Mo. 203; Fugitt v. Nixon, 44 Mo. 295; Burks v. Stam, 165 Mo.App. 455; Sallee v. McMurry, 133 Mo.App. 266. (2) The facts in evidence made a case to go to the jury on the question of the sale being made in a reasonable time, and the jury having found that issue for the plaintiff, under substantial evidence, that question of fact is settled for this court. La Force v. Washington University, 106 Mo.App. 523; Sallee v. McMurry, 113 Mo.App. 253; Glade v. Eastern Illinois Mining Co., 129 Mo.App. 454; Howe v. Bristow, 65 Mo.App. 631. (3) The courts hold that when the question of reasonable time in which an act is to be done is involved, then the court should give the jury a guide or basis upon which to determine whether the time in which the act was done was reasonable. Skoop v. Railroad, 93 Mo.App. 605; Skeen v. Springfield Engine & Thresher Co., 34 Mo.App. 485; Fugitt v. Nixon, 44 Mo. 295; Austin v. Transit Co., 115 Mo.App. 151; Orcutt v. Century Bldg. Co., 214 Mo. 45. (4) The instruction is not a comment on the evidence but a grouping together of facts the jury would have to find before they would be authorized to find that the sale was made in a reasonable time. Milling Co. v. McWilliams, 121 Mo.App. 319; Feddock v. St. Louis Car Co., 125 Mo.App. 24; Howe v. Bristow, 65 Mo.App. 631; Mitchell v. Plattsburgh, 33 Mo.App. 559; Fleisch v. Insurance Co., 58 Mo. 606.

OPINION

COX, J.

This is the second verdict in plaintiff's favor, and the second appeal. The first is reported in volume 132 Mo.App. 320. On that appeal this case was reversed because the trial court refused to instruct the jury that plaintiff must show that the sale of the property was made in a reasonable time after his employment. On the last trial, which resulted in the judgment from which the present appeal is taken, the court gave, on behalf of plaintiff, the following instructions:

"I. The court instructs the jury that, if the jury believe from the evidence in this case, that the plaintiff and defendant entered into an agreement that if the plaintiff would procure a purchaser for defendant's interests in the ice factory and beer agency in the City of Carthage and for the defendant's brick and stone structure on the Southeast corner of the Public Square in the City of Carthage, at such price and upon such terms as the proposed purchaser and the defendant might mutually agree upon, then and in that event the defendant would pay the plaintiff the sum of one thousand dollars, and if you further believe from the evidence that the plaintiff procured one A. T. Blackwell, and that A. T Blackwell did, in the summer of 1904, purchase from the defendant his interest in the ice factory and beer agency in the City of Carthage, and that soon thereafter the plaintiff asked the defendant for his commission, and that the defendant stated to the plaintiff that his commission would not be paid until the business block was sold, and that thereafter, from time to time, from the date of the sale of the ice factory to the said Blackwell, up to the time of the sale of the business block by defendant to the said Blackwell, the plaintiff every month or two months held interviews with the defendant and with the said Blackwell about the said sale, and was urging the consummation of such sale continuously, at frequent periods, until such sale of said business block was made by the defendant to said Blackwell, and that, during all of said time the defendant did not notify plaintiff in any manner that his agency was revoked and that he would not pay any commission for his services in that behalf, and that both of said sales to the said Blackwell were the result of the work of the plaintiff in procuring said Blackwell as a purchaser therefor, then the jury may find that both of said sales were made within a reasonable time; and if you so find, you will find the issues for the plaintiff and assess his damages at the sum of one thousand dollars, with interest thereon at the rate of six per cent per annum from the date of the commencement of this suit, to-wit: July 11, 1907.

"II. The court instructs the jury, that what may not be a reasonable time in one case may be a reasonable time in another case, and if the jury believes from the evidence that during the time that elapsed from the date of employment of plaintiff by defendant to procure a purchaser, if you find he was so employed, that the plaintiff at regular intervals was...