124 Mo. App. 248 | Mo. Ct. App. | 1907
Plaintiff, a real estate agent in the city of Mexico, Missouri, obtained judgment against defendant for $133 for a commission alleged to be due for
“Yes, sir; I spoke to him before be went out; just to him, not so tbe others could bear. I told him I would talk now to Mr. Taylor; be bad bad a talk and probably I bad better talk with him.
Q. He bad bad a talk and probably you bad better have a talk with him? A. Yes, sir.
Q. Then Mr. West left? A. Yes, sir.
Q. Did Mr. Taylor go out then? A. Well, right soon I think, as we bad agreed upon our appointment.
Q. Did you agree upon an appointment there in tbe office? A. Yes, or at tbe office door; somewhere along there.”
Plaintiff conversed briefly with Taylor after West had departed about taking Taylor to see-tbe property that afternoon. Taylor asked what time it was and on learning it was three o’clock, said be had some business to attend to just then, but would return at five o’clock to go with Bassford. He passed tbe office a short while after five o’clock, but not seeing Bassford in, went home, intending to return tbe next (Thursday) morning to go to view tbe property. West came back to tbe office in half an hour after leaving and a conversation ensued between him and plaintiff regarding tbe sale to Taylor, in wbicb West asked what plaintiff’s commission would be for selling tbe property. Plaintiff told him tbe usual rate was five per cent on tbe first thousand dollars and
We have stated the facts rather minutely in order to point out that, in our opinion, both the petition and the instructions lost sight of the real case and presented one in the form in which controversies over the sales of prop
The present case diverges from the common type of litigation between brokers and principals in that defendant had not put his property in plaintiff’s hands for sale prior to the introduction to Taylor, and never employed plaintiff further than to assist in selling to Taylor. It
The petition, too, presents an obstacle to inferring a contract from the circumstances. Both counts declare on a special contract, express in all its terms except that, in the second count, there is no averment of a stipulated rate of commission. In Loving Co. v. Hesperian Cattle Co., 176 Mo. 332, the supreme court rejected the contention that the plaintiff therein could recover a commission for the sale of defendant’s property as broker on the theory that, though plaintiff was not authorized to procure the purchaser whom it found, the defendant had sold to said purchaser and had thereby adopted plaintiff’s services. The contention was rejected because the petition contained no appropriate allegation, and in the present case not only that reason is good, but, as said, the evidence lends no support to such a theory.
Defendant’s counsel insist that a verdict should have been directed for their client because there was no testimony either that plaintiff was employed, or, if employed, that he sold the property. Our conclusion upon this point rendered it unnecessary, strictly speaking, to consider the instructions; but we found it convenient to point out that the theories on which the instructions held the defendant liable were not supported by the facts, as one step toward showing he cannot be held liable on any theory. It is vital to a just determination of