Appeal
from Knox Circuit Court.--Hon. E. R. McKee, Judge.
The
plaintiff's petition alleged, in substance, that
plaintiff owned a farm of one hundred and sixty acres in Knox
county, Missouri, describing it; that the defendant is a real
estate agent in Edina, in said county, engaged in selling
land for other people for commission; that plaintiff employed
defendant to sell said land for him at twenty-five dollars
per acre at an agreed and stipulated price of fifty dollars
as commission, for his services for selling said land, and
that defendant undertook to and did sell the land for
plaintiff to one Sheehy for $ 26.50 per acre; that plaintiff
paid defendant the fifty dollars commission as full
compensation therefor, and says that defendant, acting as his
agent, sold said land to said Sheehy for the sum of $ 26.50
per acre, when defendant falsely and fraudulently, with the
intent to defraud plaintiff out of two hundred and forty
dollars, falsely reported to plaintiff that he had sold said
land to Sheehy for the sum of twenty-five dollars per acre
and that Sheehy would not pay more than the said twenty-five
dollars per acre for said land, when in truth and in fact the
defendant had, prior to the time he so falsely reported said
sale to plaintiff, already executed a written contract for
the sale of said land to Sheehy for the sum of $ 26.50 per
acre by signing the name of plaintiff thereto by defendant
as his agent, and had then received five hundred dollars paid
by Sheehy to bind said contract; that defendant collected all
of the purchase money on said land, including two hundred and
forty dollars, the excess said land brought over and above
twenty-five dollars per acre, the amount defendant reported
to plaintiff said land was sold for; that at the time
plaintiff executed the deed to Sheehy he was led to believe
through the false and fraudulent representations of
defendant, that twenty-five dollars per acre was all that
Sheehy was paying for said land and did not know that Sheehy
was paying or that defendant was collecting from Sheehy the
two hundred and forty dollars for which this suit is brought
etc., and prays judgment for two hundred and forty dollars.
The
answer admits defendant is a real estate agent and broker
admits that about the tenth of February, 1903, plaintiff
employed defendant to sell the land; denies that he was to
sell the land for the sole agreed compensation of fifty
dollars and avers that it was agreed between plaintiff and
defendant that if the land was sold for the sole price of
twenty-five dollars per acre, then defendant was to receive
fifty dollars only from plaintiff as his commission, but in
the event the land was sold for over twenty-five dollars per
acre, defendant was to receive all sums over and above
twenty-five dollars per acre for which said land might be
sold in addition to the said fifty dollars as his
commissions; admits that he negotiated the sale to Sheehy at
$ 26.50; that he received out of the purchase money from
Sheehy $ 1.50 per acre, in all two hundred and forty dollars,
and from plaintiff the fifty dollars agreed upon as his
commission.
The
issues thus made up were tried by a jury.
E. F.
Sheehy testified for the plaintiff, that prior to eleven
o'clock a. m. on February 13, 1903, he contracted for the
Woodard farm at $ 26.50 per acre, through T. A. Cooney,
defendant, and left a check with Cooney for five hundred
dollars which was afterwards paid on the land; that a written
contract was executed by himself and T. A. Cooney signed it
for Woodard, the plaintiff, at the time. (It seems this
contract was read in evidence in conjunction with this
witness' testimony, without objection. It was marked
exhibit "A." There appears in pencil a call for it
in the bill of exceptions but it is nowhere to be found in
the bill or record.) Witness further testified that after
making this contract and payment he went to the depot at
Edina in time for the eleven o'clock a. m. train to leave
town, but the train was late and he remained at the depot
until four o'clock in the afternoon when he departed;
that the contract mentioned was delivered to him.
Patrick
Woodard, the plaintiff, testified that he owned the one
hundred and sixty acres of land in Knox county. "Well,
the first I knew, Mr. Cooney 'phones he had a buyer for
my farm and wanted to know if I could come down and I told
him I could. It was about noon (just as I was eating dinner)
on the day the sale or contract was made. He said the buyer
would stay there until eight o'clock. 'Well,' I
says, 'I can be down there in three hours and I was down
there. I got here in Edina, I guess, along about three
o'clock. I asked Mr. Cooney about my land buyer.
'Well.' he says, 'he has gone.' 'Why.
' I says, 'you told me he would be here.'
'Well, he had to go home,' he says, 'he has gone.
He left an offer on the land.' Mr. Cooney first says,
'what do you want for the land?' 'Well,' I
says, 'I want thirty dollars an acre!'"
Plaintiff insists that prior to this time he had had no
conversation with Cooney whatever about selling the land for
him. "He (Cooney) says, 'I understood you would take
twenty-five dollars per acre.' I told him I wanted thirty
dollars an acre, and he said he had understood I would take
twenty-five. I says, 'not lately.' I says, 'of
course, one time I did offer to take twenty-five, but land
has advanced, I have raised to thirty dollars.' Well, he
talked and said he was sorry he had made the trip out there
and back. He said he tried to get thirty, tried to get $
27.50 and even tried to get $ 26 an acre, and got him
(Sheehy) to promise him, provided I would take and sign the
contract, twenty-five dollars an acre, and if I could
consummate the contract, when the mail came back, he (Sheehy)
would send me five hundred dollars. Well, I finally agreed
with him. I asked him, first, what his commission would be
out of it. Well, he said he wanted one dollar an acre. I
said, 'that settles it, we will not trade.' When I
offered to take twenty-five dollars, I told him he might get
his commission out of the man who bought the land. I wanted
twenty-five dollars an acre. He figured a while and came down
to one hundred dollars, then he came to seventy-five, then he
said he would take fifty. He said he had been to trouble and
all, and he said he would take fifty to make it go. Well, I
agreed to take twenty-five an acre after he made me believe
that was every cent he could get out of it. I wanted him to
submit an offer of more than twenty-five to the purchaser and
see if he could not do better. He said, 'No, that is the
very last dollar he will pay,' and I finally agreed to
give him fifty dollars. That was the understanding between
us, that was the commission I was to pay him, that was the
contract. At that time we drew up a contract between myself
and Sheehy, the purchaser, to be sent to Iowa. That contract
was for twenty-five dollars an acre, claiming he was selling
the farm for us, when the contract got there Mr. Sheehy would
send me five hundred dollars. When we were executing the
contract that was the understanding; he was to send it to
Iowa and he (purchaser) was to sign it and send it back. (It
is admitted here that Cooney sold the farm for $ 26.50 per
acre.) Sheehy took the land and Cooney got his fifty dollars.
It was in June after this I found out he had sold the land
for $ 26.50. I then went to Cooney about it and demanded the
two hundred and forty dollars from him. He refused to pay it
and offered me fifty dollars." (Objected to and
objection sustained.)
On
cross-examination, plaintiff testified that he had no prior
acquaintance with Mr. Cooney, knew him when he saw him,
having heard some one say that was Mr. Cooney. "I had no
conversation with him (Cooney) in September or October of
last year or at any time about selling land in which I told
him I wanted twenty-five dollars per acre for my land. He did
not tell me that it was doubtful whether he could sell it for
that, never had such a conversation whatever. I did not tell
him, finally, that he could sell it for twenty-five dollars
and I would give him fifty dollars and he could have all over
twenty-five dollars he got for it in addition. I never had
any conversation with Mr. Cooney at the foot of his office
steps about this land or anything else, had no conversation
with Mr. Cooney in the presence of Samuel Moore. When the
contract was signed, February thirteenth, it was in Mr.
Hollister's office, that is the only time we ever talked
about his selling my land, that is the time I agreed to give
him fifty dollars. I don't know where the contract is.
Mr. Cooney had it the last I knew of it. I did not read the
contract. Mr. Hollister read it to me; I believe it provided
for twenty-five dollars per acre. There was a question there
in Mr. Hollister's office about me taking a
three-thousand-dollar mortgage on the land. I agreed to it
and took the mortgage when the deeds were finally made. I
made the deed read in consideration of fifty-six hundred
dollars or thirty-five dollars per acre. Mr. Hollister told
me that was the amount they wanted it to read. Mr. Hollister
said Sheehy would borrow money on the land to pay me and they
wanted the deed to read fifty-six hundred dollars. I knew at
the same time that I was receiving twenty-five dollars only
for the land and fifty dollars was to be paid Cooney but I
never knew what Cooney got until June."
The
above and foregoing is a fair synopsis of all the material
evidence on the part of the plaintiff.
Defendant
Cooney testified that he had known the plaintiff about
fifteen months; that he had, prior to the date...
