Turner v. Snyder

• Decision Date: 08 June 1908
• Citation: 111 S.W. 858,132 Mo.App. 320
• Parties: CHARLES L. TURNER, Respondent, v. A. H. SNYDER, Appellant
• Court: Kansas Court of Appeals

111 S.W. 858

132 Mo.App. 320

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

Court of Appeals of Missouri, Kansas City

June 8, 1908

Appeal from Jasper Circuit Court.--Hon. Hugh Dabbs, Judge.

REVERSED AND REMANDED.

Thomas & Hackney for appellant.

(1) The plaintiff's testimony is that no time was fixed. This being the case the plaintiff must have produced a purchaser within a reasonable time thereafter. Hearst v Williams, 102 S.W. 1176; Randolph v. Frick, 57 Mo.App. 400; Bradnor v. Rockdale Powder Co., 115 Mo.App. 102; Locksley v. Studebaker, 68 A. 98; LaForce v. Washington University, 106 Mo.App. 517.

McReynolds & Halliburton for respondent.

(1) The lower court did not err in refusing defendant's instructions as to procuring a purchaser in a reasonable time. Because no such issue was tendered by the pleadings. Defendant's answer is a general denial, which only tenders two issues: a. That plaintiff was not employed by defendant. b. That plaintiff did not procure a purchaser. (2) That plaintiff did not procure a purchaser in a reasonable time is an affirmative defense, that should have been pleaded if intended to be urged by defendant as a defense to recovery. Such defense necessarily admits the employment and the procuring of a purchaser by plaintiff. Randolph v Frick, 57 Mo.App. 405; Royal Remedy Co. v. Grocer Co., 90 Mo.App. 59; Riggins v. Railroad, 73 Mo 607; Mossman v. Bender, 80 Mo. 585; Budd et al v. Hoffmeister, 52 Mo. 302; Veatch v. Norman, 109 Mo.App. 387; Morley v. St. Joseph, 112 Mo.App. 675. The agency of plaintiff being a continuing agency, before defendant could defeat plaintiff in the recovery of his commission, in this case, defendant should, in good faith, without design to avoid the payment of commission, have revoked plaintiff's agency to procure a purchase before the sale to purchaser procured by plaintiff. LaForce v. Washington University, 106 Mo.App. 523; Salee v. McMurray, 113 Mo.App. 253; Glade v. Mining Co., 107 S.W. 1005. (3) Defendant's instructions on the question of procuring a purchaser in a reasonable time were properly refused, because they do not furnish any guide or basis from which to determine what would be a reasonable time. What is reasonable time, is a mixed question of law and fact, and the instructions should give some basis upon which to determine what is a reasonable time in any given case. Sloop v. Railway, 93 Mo.App. 609; Skeen v. Springfield Engine & Thresher Co., 34 Mo.App. 497, citing Linville v. Welch, 29 Mo. 203; Fugitt v. Nixon, 44 Mo. 295; Osborne v. Marks, 29 Mo. 1.

OPINION

ELLISON, J.

Plaintiff brought this action to recover a commission on the sale of real estate and other property for defendant. He prevailed in the trial court. All of the property was not sold at one time, there being a period of near three years intervening. The petition alleges that defendant employed plaintiff to "procure a purchaser for all of said property in said city of Carthage, agreeing with the plaintiff that if plaintiff produced a purchaser or purchasers for the same that defendant would pay the plaintiff therefor the sum of one thousand dollars. That plaintiff at once set about procuring a purchaser such as would be satisfactory to defendant, and that plaintiff succeeded in procuring and did procure a purchaser for all of said property and that defendant sold and conveyed the property to the purchaser so procured by the plaintiff." Demand and refusal of payment of the sum agreed upon is then alleged. The answer was a general denial.

Defendant complains of the refusal of the trial court to instruct the jury that if they believed that no time was fixed by the contract for procuring the purchaser, then it was the duty of plaintiff to procure him within a reasonable time and unless he did so there could be no recovery. While it is true that in this case defendant sold the property to the party originally brought to him by plaintiff, yet the law is that if there is no time limit to the contract, a reasonable time is implied, and after the expiration of that time the owner may, in good faith, revoke the agency and sell to the party first discovered by the agent. [La Force v. Washington University, 106 Mo.App. 517, 81 S.W. 209.] And we held in an opinion by BROADDUS, P. J., that after the expiration of such time a sale by the owner operated to revoke the agency. [Wallace v. Figone...