Weisels-Gerhart Real Estate Co. v. Epstein
| Decision Date | 01 May 1911 |
| Citation | 137 S.W. 326,157 Mo.App. 101 |
| Parties | WEISELS-GERHART REAL ESTATE COMPANY, Appellant, v. EUGENE J. EPSTEIN, Respondent |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. James E. Withrow Judge.
Judgment reversed and cause remanded.
Stern & Haberman for appellant.
On the undisputed evidence the appellant was entitled to have the cause submitted to the jury. Mercantile Trust Co. v Lamar, 128 S.W. 20; Lipscomb v. Mastin, 125 S.W. 1177; Henderson v. Mace, 64 Mo.App. 396; Glover v. Henderson, 120 Mo. 376; Sallee v McMurray, 113 Mo.App. 267.
George E. Mix, for respondent, filed argument.
This is a suit by a real estate agent for commissions. At the conclusion of plaintiff's evidence, the court peremptorily directed a verdict for defendant, and plaintiff prosecutes the appeal.
Plaintiff is an incorporated company, engaged in the real estate business in the city of St. Louis, and defendant owned a residence numbered 5190 Raymond avenue, in the same city which he desired to sell. Plaintiff was employed to procure a purchaser and negotiate a sale of defendant's property at the price of $ 12,500, if possible, and, if not, then to offer it at not less than $ 11,800. The contract of agency was executed by defendant in writing, and stipulated that plaintiff should have for its commission 2 1/2 per cent on the amount at which a sale was made. It conferred upon plaintiff an exclusive agency for the sale of the property, but stipulated that the authority might be revoked by defendant on fifteen days' written notice to plaintiff. Immediately after being appointed agent for the sale of the property, plaintiff set about advertising the same and had photographs of the property made, which it kept in its real estate office and exhibited. It appears in evidence that plaintiff advertised defendant's property in a daily newspaper in St. Louis at different times for some four or five months and as well in a real estate catalogue which was issued. Indeed, plaintiff's advertisements continued to run until after its authority was revoked by defendant, but this is unimportant. About the 17th of December, the attention of one Mathes, who subsequently purchased from defendant, was directed to the property by plaintiff. Having learned Mr. Mathes was in the market for a home, plaintiff's vice-president, Mr. Weisels, spoke to him concerning the property of defendant, told him of its location, general character, etc., and exhibited a photograph of the same to him. Mr. Mathes said he desired to purchase a home in that portion of the city at about $ 10,000 or $ 12,000, and Mr. Weisels requested him to investigate and consider that of defendant. Mr. Mathes replied that his wife would look after the matter for him, and requested plaintiff to write her concerning the property and submit a list of others as well, whereupon Mr. Weisels immediately wrote Mrs. Mathes a letter calling attention to defendant's property, inclosed a card for admission thereto for inspection, and also called her attention to a number of other properties plaintiff had for sale in what is known as the "West End" of the city. Within three or four days thereafter Mr. Weisels notified defendant over the telephone that he had opened negotiations with Mathes, who was a prospective buyer, and inquired if he had called to inspect the property. Defendant answered he had not up to that time. Thereafter, Mr. Weisels spoke to Mr. Mathes over the telephone on two occasions and urged him to inspect defendant's property, and let him know what he thought about it. Mr. Mathes answered the whole matter was in the hands of his wife, who was looking around for a home. These several conversations over the telephone were had about the 20th to 22d of December, and on January 10th defendant notified plaintiff in writing that its agency was revoked. This notice, by the terms of the contract, was effective in operating a revocation of plaintiff's agency fifteen days thereafter, or about January 26th, and it appears in proof that on February 4th an agreement for the sale of the property was entered into by defendant directly with Mathes, as earnest money was paid thereon that day for which a receipt was executed. During the same month, the sale of the property was consummated by defendant to Mathes through executing and delivering to him a warranty deed therefor. Defendant admitted at the trial that he sold the property to Mathes as mentioned for a consideration of $ 11,600, a part of which was paid in cash and the remainder secured by a deed of trust thereon. Though defendant himself made the sale to Mathes after the termination of plaintiff's agency, which was January 26th, it is entirely clear the matter of his liability to respond to plaintiff for commissions should have been referred to the jury. That plaintiff acted with reasonable diligence in advertising the property and attempting to procure a purchaser therefor is quite clear, and it appears, too, that it not only interested Mathes, the purchaser, therein and directed his attention to the property, but immediately informed defendant of this fact. It is in evidence, too, that within two or three days after defendant served notice on plaintiff on January 10th revoking the agency fifteen days thereafter, Mr. Weisels spoke to defendant over the telephone, and told him he understood defendant had sold the property to Mathes. In reply to this, it is said defendant stated that it was none of plaintiff's business. If defendant made such an answer to the question, this circumstance is one for the jury, together with the fact that an earnest money receipt was executed by defendant to Mathes on February 4th, only a few days after plaintiff's agency terminated under the notice on January 26th. Such matters are for the consideration of the...
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