Veatch v. Norman
| Decision Date | 24 June 1902 |
| Citation | 69 S.W. 472,95 Mo.App. 500 |
| Parties | CHARLES A. VEATCH, Respondent, v. W. W. NORMAN, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. William Zachritz Judge.
AFFIRMED.
Judgment affirmed.
J. F Green for appellant.
(1) Before a broker can recover compensation for effecting a sale of property, he must show that he found and procured a purchaser who was willing and able to purchase the property upon the exact terms proposed by his principal. Warren v Gram, 71 Mo.App. 640; Reiger v. Reiger, 29 Mo.App. 421; Yoder v. White, 75 Mo.App. 155; Blackwell v. Adams, 28 Mo.App. 61; Stinde v. Blesh, 42 Mo.App. 478; Hackman v. Gutweiler, 66 Mo.App. 244; Hayden v. Grillo, 26 Mo.App. 289; Cox v. Bowling, 54 Mo.App. 289. (2) Plaintiff having sued upon a written contract must recover upon the contract or not at all, and where the testimony shows a failure to comply with the contract as pleaded, there can be no recovery. Cole v. Armour, 154 Mo. 351; Huston v. Taylor, 140 Mo. 252; Clements v. Yates, 69 Mo. 625; Furth v. Anderson, 37 Mo. 354.
F. W. Imsiepen and S. S. Merrill for respondent.
(1) The modified contract as pleaded was supported by the evidence, and defendant's demurrer to the evidence admitted every material fact proven, and every reasonable inference which might be drawn from the testimony to be true, and should never have been sustained by the trial court unless the evidence, when thus considered, failed to make proof of some essential fact. Young v. Webb City, 150 Mo. 333; Bank v. Simpson, 152 Mo. 638; Keonn v. Railroad, 141 Mo. 86; Roe v. Annan, 80 Mo.App. 198. (2) It is a principle of law in this State, established by a long series of cases, that when the real estate is placed in the hands of a real estate agent for sale, and a sale is brought about through his exertions, or he is the procuring cause, he is entitled to his compensation. Grether v. McCormack, 79 Mo.App. 325; Henderson v. Mace, 64 Mo.App. 393; Tyler v. Parr, 52 Mo. 249; Timmerman v. Craddock, 70 Mo. 638; Bell v. Kaiser, 50 Mo. 150. (3) Plaintiff had a right to plead a written contract carried out as modified by defendant, such contract so modified, being the contract set out in the pleading. Grether v. McCormack, 79 Mo.App. 325; Woods v. Stephens, 46 Mo. 556; Helm v. Wilson, 4 Mo. 44; Wright v. Orrison, 68 Mo.App. 582; Stinde v. Besch, 42 Mo.App. 581; Wetzel v. Wagner, 41 Mo.App. 516. (4) The designation by a principal to his agent of the quality and quantity of the subject of the agency, fixes the standard of value, and, hence, is a part of the res gesta, and such designation authorizes the agent to warrant the quality, quantity and condition of the articles sold. Palmer v. Hatch, 46 Mo. 585; Samuel v. Bartee, 53 Mo.App. 587; Andrews v. Kneeland, 6 Cowen 354. (5) If a broker's contract is discharged by the breach of his principal, the broker acquires three distinct rights: (a) The right of exoneration. (b) If he has done anything under the contract he may sue on a quantum meruit, or (c) on the terms of the contract broken. Anson Agency (1887), star page 309. (6) The principal's acts of interference with his broker's negotiations, constitute a willful or fraudulent act, in violation of his undertaking express or implied. Wood v. Stephens, 46 Mo. 556; Hines v. Henry, 36 N. J. Law, 328; Doonan v. Ives, 75 Ga. 302; Bell v. Kaiser, 50 Mo. 150; Grether v. McCormack, 79 Mo.App. 325. Obstruction of performance by one party is a waiver of performance by the other party. And a party who disables himself from performing his contract before default by the other party, or creates an antecedent impossibility, waives the performance of the acts by the latter, while otherwise he would be bound to perform as condition precedent to a recovery on the contract. Hart v. Hopson, 52 Mo.App. at 193; Hines v. Brettelle, 70 Mo.App. 344; Collins v. Delaporte, 115 Mass. 162; Hawley v. Keeler, 53 N.Y. 121; Anson Contract of Agency (1887), star pp. 285 and 286; also note foot of page 375.
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 nine hundred and eighty dollars if he secured a purchaser, at five dollars 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, Missouri, 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):
Plaintiff testified that about the eighth 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, Missouri. 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 its substance is that defendant afterwards, in March, 1900, closed a sale for $ 19,000 (which was at the rate of $ 3.95 an acre) to the cooperage company, of about 4,800 acres of the land mentioned in the original proposition. This sale was made directly between defendant and Mr. Brown, the officer of the company introduced as a purchaser through the instrumentality of the plaintiff, according to his testimony.
The officer of the purchasing company, who closed the sale, testified on behalf of plaintiff, and his evidence permits the inference that he would have bought that part of the 5,480 acres tract which he did not buy, if it had contained the average quantity of white oak timber, as represented by plaintiff to defendant before the former undertook to dispose of the property as broker.
Defendant refused to pay plaintiff any commission in the transaction.
On this showing the learned trial judge acted as already described. This appeal of defendant followed after the order for a new trial.
1. Under the law permitting appeals from orders granting a new trial, the ruling upon a motion to set aside an involuntary nonsuit (taken with leave, etc.) may properly form the basis for an interlocutory appeal, the same as in case of an ordinary motion for new trial....
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