Witty v. Saling
| Decision Date | 01 March 1913 |
| Parties | WITTY et al. v. SALING et ux. |
| Court | Missouri Court of Appeals |
TRIAL (§ 333) — VERDICT — AMOUNT OF RECOVERY.
Plaintiff being entitled, under the issues and instructions, to a verdict for a certain amount or nothing, he pleading a contract to pay him a certain commission for producing a customer, and averring that he did produce one, and his evidence all going to sustain these allegations, and defendants denying that they were bound by the contract, and that they owed plaintiff anything, a verdict for a less amount cannot stand, though a clause of the contract provided for plaintiff receiving half the specified amount, if defendants sold the property to any person not produced by plaintiff; and they testified that they did sell it to one with whom plaintiff had nothing to do.
Appeal from Circuit Court, Scotland County; Chas. D. Stewart, Judge.
Action by Lee T. Witty and another against William Saling and wife. Judgment for plaintiffs; defendants appeal. Reversed and remanded.
This is a suit for commissions alleged to have been earned by plaintiffs in negotiating a sale of real estate. Plaintiffs are partners engaged in the real estate business in Memphis, Mo. The defendants are husband and wife, and the action is for a broker's commission for finding a purchaser for a farm belonging to the defendant Martha Saling, under an express contract executed by the defendant William Saling, and which plaintiffs claim was ratified and acquiesced in by the defendant Martha Saling, who held the title to the property. The contract in question was executed on September 19, 1910, and gave to plaintiff Witty an exclusive agency to sell the farm for a term ending January 1, 1911. Plaintiff McCandless afterwards became a partner with Witty and entitled to one-half of the benefits to be derived from the contract. The contract provided that the farm in question, consisting of 200 acres, was to be sold at the price of $80 per acre, the agent to receive $5 per acre as a commission, a total of $1,000, if sold at this price; if sold for a higher price, the agent, in addition to the stipulated commission, was authorized to retain everything above the price of $80 per acre.
The petition is in two counts, each stating the same cause of action in different phraseology, and in each of which the contract is pleaded in substance and legal effect, and in each the plaintiffs aver that they produced a purchaser, one J. Y. Phillips, ready, able and willing to take and pay for said farm at the said price of $80 per acre, but that the defendants failed and refused to perform the contract on their part and to sell said property. It is further averred in each count that after the execution of the written contract, aforesaid, it was modified by a parol agreement, whereby it was agreed that if plaintiffs sold the farm for the said price of $80 per acre their commission would be reduced by $250, so that they would receive $750 instead of $1,000 for consummating the sale. In each count plaintiffs pray judgment for the sum of $750. The answer admitted that defendants were husband and wife, and denied generally all of the other allegations of the petition.
The case was tried before the court and a jury. Plaintiffs offered in evidence the written contract executed by defendant William Saling, and produced testimony tending to show that the defendant Martha Saling had ratified and acquiesced in the same, after knowledge of its execution and terms. Plaintiffs' evidence further tended to show that they had produced a purchaser for the property, who was ready, willing, and able to purchase and pay for the same, but that defendants had refused to consummate the sale. The evidence on behalf of the defendants was directed in the main to an attempt to show that defendant William Saling did not know the contents of the contract when he signed it; that he did not have his glasses at the time, and thought that it was like a former contract that he had had with plaintiff Witty; that defendant Martha Saling had never seen the contract, and did not know what it was; that she had not agreed to sell the farm upon the terms specified in the contract, nor to pay the commission therein provided to be paid. On cross-examination of defendant Martha Saling, she testified that about the end of October or the 1st of November, 1910, she entered into a contract to sell the farm in question to one Grimes Carder at $85 per acre; and that after this she came to plaintiffs to try to get them to deliver up their contract to her.
The cause was submitted to the jury upon instructions, thirteen in number, nine of which were given at request of plaintiffs and four at the request of the defendants. Four instructions requested by defendants were refused by the court. The jury found a verdict for plaintiffs in the sum of $500, judgment was entered accordingly, and the defendants appealed.
Smoot & Smoot and N. M. Pettingill, all of Memphis, for appellants. Jno. M. Jayne, of Memphis, for respondents.
ALLEN, J. (after...
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