180 Mo. App. 421 | Mo. Ct. App. | 1914
Plaintiff, a real estate broker, brought this suit in two counts. The first is to recover the sum of $125 agreed upon as plaintiff’s commission' from defendant for bringing two landowners together and bringing about an exchange of defendant’s farm for a farm belonging to one Wolfe; and the second is to recover the sum of $500 damages for causing the plaintiff to be defeated from collecting that amount of Wolfe as commission due from him. Both defendant and Wolfe knew that plaintiff was acting for both in the trade and consented that he should receive a commission from each, so there is no objection on that score.
■ The first count, after stating that plaintiff was a real estate broker, alleged that defendant was the owner of a farm of sixty-eight acres in Johnson county, specifically describing it; that Wolfe was the owner of 320 acres in.Cass county; that plaintiff had the farms of both for sale or exchange; that by his exertions he brought defendant and Wolfe together and induced them to enter into a contract for the exchange of their respective farms upon the terms therein stated; that
In the second count the foregoing preliminary facts as to the ownership of the two farms, the- agency with each of the two men, the agreement to exchange farms, the commission to be paid by each were all alleged to be true, and plaintiff then averred that the title of Wolfe to his farm was merchantable and good; that Wolfe was ready, able and willing to perform said agreement and comply with all terms thereof, but by reason of the failure and refusal of defendant to carry put said contract on his part, plaintiff has been unable to collect the $500 commission from Wolfe and has received no commission from him, by reason whereof plaintiff is damaged in the sum of $500 for which judgment is asked.
The answer to the first count was a general denial. The answer to the second count was, first, a general denial, and then it was alleged that Wolfe and defendant entered into a contract in writing for the exchange of their respective farms, duly signed and acknowledged by both, and the answer set out the contract in full showing specific description of both farms and the terms of the trade. The answer to said second count further alleged that said written contract was legal and binding on both Wolfe and defendant; that defendant was at that time financially able to comply with said contract; that it was executed and delivered by both parties and also executed for the benefit of plaintiff; that by reason of said facts plaintiff was entitled to recover the $500 of Wolfe because he (plain
With this answer defendant filed a written offer to allow judgment to be entered against him on the first count for $125 which offer had been duly served upon plaintiff’s attorney. To the answer plaintiff filed a reply admitting that defendant and Wolfe made and executed the written contract set out in the answer, and also admitting that defendant was- at that time financially able to comply with said contract, and denied every other allegation in the answer.
When the reply was filed containing these admissions that the contract plaintiff had secured for Wolfe was a written contract executed by both of them and that defendant was financially able to comply therewith (in which case Wolfe could hold defendant liable in damages for failure to perform), defendant filed a motion for judgment on the pleadings. This was overruled and exceptions were saved. The trial was had and the evidence showed, without contradiction,- the facts to be as shown in the pleadings.
At the close of the evidence defendant demurred to the evidence as to the second count. This was overruled. Thereupon plaintiff prayed the court to give the jury peremptory instructions to find for plaintiff on each of the counts in the petition, which the court gave. The jury, in obedience to said instructions, returned a verdict for $125 on the first count and for $500 on the second count and judgment was rendered in accordance therewith. Defendant appeals, claiming that he is only liable for the $125, judgment for which he offered to allow entered against him.
Under the facts of this case, before plaintiff can recover of defendant the commission Wolfe agreed to pay, he mnst show that Wolfe cannot be held liable therefor and that defendant’s act caused such nonliability. Let us see whether Wolfe is exempt from such
So far as the pleadings are concerned they show that this was done. They show that a written contract between Wolfe and defendant, signed by both of them and valid on its face, was executed and delivered, and that defendant was financially able to carry it out but refused, without legal excuse, to do so. Consequently, Wolfe is shown by the pleadings to be liable to plaintiff for the $500 he agreed to pay him. Hence, defendant has not caused plaintiff to lose $500, and the motion for judgment on the pleadings should have been sustained. If this had been done judgment would have been rendered for plaintiff for $125 on the first count, agreeable to defendant’s offer, and for defendant on the second count.
But plaintiff contends that he offered in evidence the record in a suit by Wolfe against defendant, for specific performance of the contract in issue, wherein defendant filed an answer saying the farm he contracted to sell was his homestead, that his wife did not sign said contract and refused to sign a deed conveying said homestead, and also showing the judgment of the court therein dismissing the case. Plaintiff contends, therefore, that the written contract between Wolfe and defendant was void and unenforcible and
But plaintiff says the evidence offered and objected to was within the pleadings since the reply denied the validity of the contract. The answer, as stated 'before, pleads and sets out the written contract valid on its face and then alleges that defendant is financially able to comply therewith. The reply admits the contract as set out and that defendant is financially able, and then closes with a general denial without pleading any fact shoiuing the contract’s invalidity. It is true, the answer alleged the contract was valid and binding, but that allegation was a mere legal conclusion. [Manker v. Faulhaber, 94 Mo. 430, l. c. 437.] If the answer contains a statement of new matter, and the plaintiff fail to reply, the defendant shall have such judgment as he is entitled thereto upon such statement. [Sec. 1810, R. S. Mo. 1909; Moore v. Sanborin, 42 Mo. 490; Ennis v. Hogan, 47 Mo. 513.] When the written
Aside from the foregoing, there is a view that perhaps supports the contention that defendant is not liable even if the record in the specific performance case had been admissible under the pleadings. It is held in Curry v. Whitmore, 110 Mo. App. 204, l. c. 208, and in Young v. Ruhwedel, 119 Mo. App. 231, l. c. 241, that even if the real estate embraced in a written contract regular on its face is found to be the vendor’s homestead, the contract does not become so void as to prevent the vendor from being liable in damages for failure to perform. Now, if, according to plaintiff’s contention, the contract of defendant was so absolutely void for all purposes that it will not support an action for damages by Wolfe, then plaintiff did not perform •any services for Wolfe entitling him to $500 commission, because he did not produce a purchaser who was able to purchase since he could not convey. If the contract is absolutely and wholly void, then no contract whatever was entered into, and plaintiff has not performed his service to Wolfe entitling him to a commission from Wolfe. He is entitled to the-commission of $125 from defendant for the services he rendered him because, without regard to whether or not the contract was void as to Rowell, Wolfe, the purchaser produced to defendant, was willing and able to perform, so that plaintiff has rendered his services to defendant for
If, as plaintiff claims, the contract Eowell did sign was wholly void, not binding upon him in any way* then as to Wolfe and as to plaintiff’s services to Wolfe, it is the same as if plaintiff had never succeeded in getting defendant to sign the written instrument. In that case, defendant could not be made to respond in'damages for loss of the Wolfe commission merely because plaintiff had expended time and labor in trying to secure a purchaser for Wolfe and, after trying, had failed. Defendánt did not employ plaintiff to procure á purchaser for Wolfe. Thé case is not like that of Bird v. Blackwell, 135 Mo. App. 23, for there the services the broker performed were services rendered the defendant. Blackwell in that case employed Bird to obtáin an exchange of lands with Ashbrook, and Bird xindeftook that service for Blackwell but in the contract that was- 'made it was agreed as: a! part thereof that Blackwell’s commission should be paid by
The judgment upon the second count is accordingly reversed leaving the judgment for $125 on the first count to remain in full force and effect.