Veatch v. Norman

• Decision Date: 24 June 1902
• Citation: 69 S.W. 472,95 Mo. App. 500
• Parties: VEATCH v. NORMAN.<SMALL><SUP>1</SUP></SMALL>
• Court: Missouri Court of Appeals

69 S.W. 472

95 Mo. A. 500

VEATCH v. NORMAN.¹

Court of Appeals at St. Louis, Missouri.

June 24, 1902.

REAL ESTATE AGENT — COMPENSATION — ACTION — PLEADING — APPEALABLE ORDER — NEW TRIAL.

1. A real estate broker undertook the sale of timber rights on a large tract of defendant's land, represented to contain certain quantities per acre of white oak and other good timber. He brought defendant and a prospective purchaser together, resulting in the sale of a large part of the land directly by defendant on cheaper terms than his original offer by plaintiff, and before a reasonable time to perform the agreement of brokerage had elapsed. Meanwhile plaintiff expended valuable time and services towards effecting a sale. Held, that plaintiff was entitled to reasonable compensation for the services actually rendered by him, on the facts stated in the opinion.

2. Where a broker introduced to his principal a purchaser able and willing to buy on the principal's terms, the broker is entitled to compensation, even though the sale is not consummated on those terms, owing to the failure of the property to answer the representations of the owner touching its quality.

3. In a suit on contract, if the facts warrant a recovery of reasonable value of the services of a broker, his right thereto will not be defeated because his petition may ask a specific or agreed commission.

4. Under the Missouri law permitting appeals from orders for new trial, such an order, on motion to set aside an involuntary nonsuit, may properly form the basis of an appeal. Coatney v. Railway Co., 51 S. W. 1036, 151 Mo. 35, followed.

5. Where the circuit court grants a new trial to plaintiff because of error in an instruction to find for defendant, the ruling will be sustained on appeal, where the evidence permits a recovery by plaintiff upon any ground within range of his pleadings.

(Syllabus by the Judge.)

Appeal from St. Louis circuit court; William Zachritz, Judge.

Action by Charles A. Veatch against W. W. Norman. Judgment for plaintiff. Defendant appeals. Affirmed.

James F. Green, for appellant. F. W. Imsiepen and S. S. Merrill, for respondent.

BARCLAY, J.

This appeal is from an order granting a new trial in an action brought by plaintiff to recover commissions for procuring a purchaser for certain lands of defendant in southeast Missouri. A brief outline of the case presented by the amended petition is that defendant, January 4, 1900, made a written proposal to plaintiff to pay him $980 if he secured a purchaser at $5 an acre for the timber rights upon a certain tract of land of defendant, covering an area of 5,480 acres, in New Madrid county, Mo., which defendant represented as "a body of good wagon oak" timber, which would "cut 4,000 feet white oak, 1,000 feet ash and hickory, 3,000 feet gum and elm, per acre." Plaintiff avers an acceptance of defendant's proposition about January 8, 1900; that plaintiff procured a purchaser for defendant's said timber rights, and notified defendant thereof; and that defendant thereafter completed the sale to said party for the timber rights upon a large part of the land mentioned, but refused to pay the commission earned by the plaintiff. The answer was a general denial. The cause came on for trial before Judge Zachritz and a jury. At the close of the evidence the court, by an instruction, declared the law to be that plaintiff could not recover, whereupon plaintiff took a nonsuit, with leave, etc. On plaintiff's motion, based on the giving of that instruction, the trial court took off the nonsuit and granted a new trial, assigning that ruling as error. From that order the defendant appealed in the usual manner. The plaintiff's case consisted of evidence given by himself and two other witnesses on his behalf. It tended to prove that defendant represented to plaintiff by letter that he owned "a body of good wagon oak, 5,480 acres, near Henderson Mounds, on the Cotton Belt R. R.," which would "cut 4,000 feet white oak, 1,000 feet ash and hickory, 3,000 feet gum and elm, per acre." Shortly afterwards (January 4, 1900) he made a proposition to plaintiff in the following terms (omitting caption and signature): "This tract of mine would suit a cooperage company all right, but I could not allow you much commission; but if the Stanley people does not take it, I will allow you $980.00 to make the deal at $5.00 per acre for the entire tract of 5,480 acres. I have given the Stanley people until the 10th to decide and look over it, so, if this proposition suits you, let me know, and I will notify you as soon as the time is out. I would be more liberal with you, but I bought this timber to cut myself, and am hurrying to get done here, so I can move on it. If I sell this lot, I know where I can buy another lot, but I would not want to buy this lot unless I sold the one I had first." Plaintiff testified that about the 8th of January, 1900, he sent a letter to defendant, accepting the offer absolutely. He testified that the letter was lost; that he had no copy; but the substance of it was given in evidence without objection. Plaintiff's account is that he immediately entered upon the performance of the contract on his part, and that after the 10th of January (between that date and the 15th) he informed defendant, by letter, of a prospective purchaser, — a cooperage company, whose managing officer afterwards bought a large part of the land for said company, as described later. The evidence tends to show that plaintiff, with defendant's consent, proceeded toward effecting a sale of the property for defendant's account, and that he called it to the attention of Mr. Brown, the vice president and managing officer of the Pioneer Cooperage Company, and several times offered the timber rights of defendant's tract for sale to him for his company. Defendant was then at Cape Girardeau, Mo. Finally Mr. Brown, who had a business establishment in St. Louis, went down to Cape Girardeau, and met defendant there. Without going into the particulars of the evidence at any length, it is sufficient to say that...