United Farm Agency v. Howald

• Decision Date: 19 January 1954
• Docket Number: No. 28747,28747
• Citation: 263 S.W.2d 889
• Parties: UNITED FARM AGENCY v. HOWALD et al.
• Court: Missouri Court of Appeals

Page 889

263 S.W.2d 889

UNITED FARM AGENCY v. HOWALD et al.

No. 28747.

St. Louis Court of Appeals, Missouri.

Jan. 19, 1954.

Roy Hamlin, Hannibal, for appellants.

Onie D. Newlon, New London, Robert E. Crist, Fred C. Bollow, Shelbina, for respondent.

WOLFE, Commissioner.

This is a suit to recover a commission of 10% on the sale of real estate and personal property, brought by the agent claiming the commission, against the defendants whose property was sold. At the close of all the evidence there was a directed verdict for the plaintiff and from the resulting judgment the defendants prosecute this appeal.

The petition alleged that the defendants owned a farm of 120 acres in Ralls County, Missouri, and that on the 14th day of August, 1951, they desired to sell the property and entered into a contract with the plaintiff company whereby they agreed to pay to the plaintiff a 10% commission on the sale price of the land and any personal property sold if a purchaser was procured by the plaintiff. The contract also provided that a commission of 5% would be paid to the plaintiff if a sale was made to a purchaser procured through the owners' own efforts or through another agent. It was further pleaded that the plaintiff thereafter did procure a purchaser who bought the real estate for $4,000 and purchased personal property of the value of $1,705. The prayer of the petition was for a judgment in the amount of $570.50, which is 10% of the total sale price. There was an alternative prayer for one-half of the above amount if it should be found that the purchaser had not been procured by the plaintiff.

The defendants by their answer denied all the allegations of the petition but admitted that they signed a 'paper' in the plaintiff's office, asserting that it was without consideration, was abandoned by all parties, and was void. They further alleged that 'they sold their property without any help from the plaintiff'.

The defendants also filed a counterclaim stating that the plaintiff had caused an illegal attachment of the defendants' bank account, but a motion to strike the counterclaim was sustained by the court and it was stricken.

As to the evidence on behalf of the plaintiff the first witness was a Mr. Ralph Myers, who was its agent in Monroe City, Missouri. He testified that Mr. and Mrs. Howald, the defendants, came to his office on August 14, 1951, and executed a contract designating the United Farm Agency as agent for the sale of their farm. This contract attached to the petition and offered in evidence provided for a payment of 10% commission to the plaintiff when a purchaser, who would purchase the farm at the price of $4,000, was procured through the plaintiff. It also provided that a like commission would be paid on the sale price of any personal property sold to such purchaser. Myers stated that the contract signed was unaltered in any way except that there had been written on the bottom of it some information to be used in advertising the farm. Myers also testified that on September 6 a Mr. and Mrs. Dreon came to his office for the purpose of buying a farm and he told them of the Howald place. They returned the next day and he went with them to the defendants' farm. He introduced the Dreons to the Howalds and they all looked over the farm. The Dreons were also interested in a farm near Shelbyville and Mr. Myers sent them to look at it.

Dreon, called as a witness by the plaintiff, testified that he had a catalogue of the United Farm Agency and that he and his wife were looking for a farm. In furtherance of this they called upon Mr. Myers, who told them about the Howald place and offered to go out with them and show it to them. The next day they returned to Myers' office and he went with them to the farm. After they arrived there they were introduced to the Howalds and looked over the place. This was all that occurred at that time, but the Dreons returned to the farm on two later occasions and discussed the purchase of the farm with the Howalds. These discussions resulted in them coming to an agreement on September 12 to purchase the place for $4,000, the price at which it was listed, and to also purchase some livestock, household goods and other personal property for $1,705. The transaction was closed by the parties on September 12 before a notary.

The defendants' evidence varies in no material matter from that of the plaintiff. Mr. Howald testified that he first met the purchasers when they came out with Mr. Myers to look at the farm, but he maintained that since he closed the sale without Myers' assistance he owed no commission to the plaintiff.

It is first contended that the court erred in directing a verdict for the plaintiff and the defendants set out several matters that they consider to be questions of fact which should have been determined by the jury. Of course, there can be no doubt that where all of the evidence leaves no issue of fact for determination there is nothing for a jury to decide and the court which is charged with determining questions of law must then direct a verdict. Home Trust Co. v. Josephson, 339 Mo. 170, 95 S.W.2d 1148, 105 A.L.R. 1063; Morgan v. Kroger Grocery & Baking Co., 348 Mo. 542, 154 S.W.2d 44; Cox v. Higdon, Mo.App., 67 S.W.2d 547; Nash v. Normandy State Bank, Mo.Sup., 201 S.W.2d 299.

As this applies to such matters as are before us, it was said in LeCompte v. Sanders, Mo.App., 299 S.W.2d 298, loc. cit. 302:

Ordinarily in a dispute of this character it is a question for a jury or the trial court as to which broker is entitled to the commission, the same being dependent upon which was the efficient and procuring cause of the sale. But where there is no dispute as to the facts, where both sides in their testimony agree to them, it...