Woods v. Stephens

• Decision Date: 31 October 1870
• Court: Missouri Supreme Court
• Parties: WOODS & PIERCE, Respondents, v. JOHN D. STEPHENS, Appellant.

46 Mo. 555

WOODS & PIERCE, Respondents,

v.JOHN D. STEPHENS, Appellant.

Supreme Court of Missouri.

October Term, 1870.

Appeal from Fourth District Court.

Barrow & McMillan, and De France, and Ewing & Holliday, for appellant, cited 26 Mo. 102, 308; 23 Mo. 328; 41 Mo. 536; 37 Mo. 104; 38 Mo. 51; 31 Mo. 165; 4 Mo. 41; 29 Md. 512, 575.

Harrington & Cover, for respondents, cited Chouteau v. Goddin, 39 Mo. 229; Newman v. Hook, 37 Mo. 207; Marsh v. Richards, 29 Mo. 99; Helm v. Wilson, 4 Mo. 41; Little v. Mercer, 9 Mo. 218; Gen. Stat. 1865, pp. 683-4, § § 1-6; Bishop v. Ransom, 39 Mo. 416; State v. Marshall, 36 Mo. 400; Bailey v. Chapman, 41 Mo. 536; Moses v. Bierling et al, 31 N. Y. 462.BLISS, Judge, delivered the opinion of the court.

The plaintiffs were real estate brokers, and were employed by defendant to sell his farm. The authority to sell was in writing, was very minute in its description of the property, fixed the price at twenty-three dollars per acre, and closed as follows: “The above is a correct description of my property, registered with Woods & Pierce, to remain in their hands for at least ninety days, and if withdrawn after that time, it is agreed that I will give them thirty days' notice of such withdrawal in writing; and I further agree to pay said Woods & Pierce three per cent. commission for selling the same, and if sold before withdrawn from their books, as above specified, and without the interposition and assistance of said Woods & Pierce, I agree to pay one-half the commission as named above; and I further agree, in case said Woods & Pierce shall make sale of the above-described property at the price and the terms set forth, that I will make a good and valid title,” etc.

Shortly afterward, one Haywood, the purchaser, came to the office of plaintiffs inquiring for land; was referred, among other tracts, to defendant's farm, was attracted by its description, and taken by one of the plaintiffs to the farm and shown over it. While there, Haywood objected to the quantity, and defendant told him he would reserve a certain forty acres, and sell him the remainder for twenty-five dollars per acre. A few days afterward, Haywood again came to the office, informed plaintiffs that he would accept defendant's offer, whereupon they sent for defendant to come to town, and the business was consummated in the office, the plaintiffs drawing the papers, etc. They now claim the three per cent. commission, amounting to $171, which defendant refuses to pay, but offers to give them something, claiming that the property was not sold under the contract; that only a portion was sold, and that by himself, as owner, and not by the plaintiffs. The court, however, instructed the jury that the plaintiffs were entitled to their commission upon the land actually sold, and they recovered judgment.

This instruction was correct. The plaintiffs fulfilled their contract so far as permitted by defendant. They furnished the capital, the office, the advertising, the reputation, etc., which attracted the purchaser; they exhibited their records, which explained the...