5 Mo. App. 457 | Mo. Ct. App. | 1878
delivered the opinion of the court.
This action is by real-estate brokers against their principal, for damages caused by his act depriving them of their commissions earned whilst in his employment. The allegations of the petition are, that plaintiffs are copartners as real-estate brokers; that, on Feb. 28, 1874, defendant employed them to purchase for him, from John A. and W. H. Scudder, trustees of Henry Ames, a lot in blocks '23 and 24 of St. Louis, fronting 183-fV feet on Main Street by 142t32- deep, on which is situated the Ames pork-house ; that defendant instructed plaintiffs to effect a purchase of this property within ten days, at the rate of $600 per front foot; that it was agreed between plaintiffs and defendant that the commission should be two and a half per cent on the pur-, chase-money ; that this should be paid by the Scudders, and was to be divided by the plaintiffs and defendant, defendant to be allowed one-fifth of the commissions; that, on March 2, plaintiffs effected their purchase according to their instructions, and the Scudders executed and delivered to plaintiffs, at that date, a warranty deed to defendant for the property named, and authorized plaintiffs to deliver the deed to defendant, to receive the purchase-money, and deduct from it their commission of two and a-half per cent; that plaintiffs offered the deed to defendant on March 9, but he refused to comply with the purchase, accept the deed, or pay the purchase-money, whereby plaintiffs lost their commissions, and were damaged $4,000, for which thóy ask judgment.
The answer denies generally the material allegations of the petition, and sets up as matter of affirmative defence that the Scudders had no title, and no power to sell or to deliver possession of the property; and that defendant, at the time of the alleged contract, had not mental capacity to contract, and that plaintiffs knew the fact at the time.
On the trial, plaintiffs offered evidence tending to prove the allegations of the petition. Evidence was introduced
It is contended by appellant that the court erred in rejecting the offer of defendant to show that, at the date of their agreement to sell, and of the deed executed by them, the Scudders had no title, and no power to convey the property in question. It is claimed that the gist of this action is the damage occasioned to plaintiffs by the wrongful act of defendant in refusing to accept the Scudder deed and to pay the purchase-money according to agreement; that, if the Scudders had not title, the defendant was not bound to accept their deed, and therefore committed no wrong and did no damage to plaintiffs of which they can complain. We do not think that the court was bound to go into the question of title. There is no dispute that the Scudders were in possession, claiming, as trustees under the will of Henry Ames, the power to give a perfect title. They executed a deed, with covenants of warranty, and the testimony is that they were ready to comply with their agreement, and to give possession within twenty-four hours. Defendant did not employ plaintiffs to ascertain in whom the legal title was vested, and to obtain from the real owners, whoever they might turn out to be, a perfect title. Such an employment they might perhaps have refused. He professed to know who were the persons having the right to convey. He stated to plaintiffs that he had a purchaser
These considerations dispose of all exceptions taken by defendant to the action of the trial court in admitting or rejecting evidence, and in refusing instructions.
It is not necessary to set out the instructions given. They fairly presented to the jury the law applicable to the facts of the case as detailed in the evidence ; nor is any serious
It is objected that absolute drunkenness must mean complete insensibility, and that this instruction was misleading. A man may, however, be absolutely drunk without being dead drunk; and we see no objection to the instruction, which seems to us to be a correct, reasonable, and intelligible direction to the jury. 1 Story on Con., sec. 87; 1 Story’s Eq., sec. 231; 35 Conn. 170; 10 Yerg. 121.
There was evidence to support the verdict, and from which the jury might very well find that defendant was quite sober, and in complete possession of all his faculties, when he made the contract in suit. Our attention is not called to any error of the trial court which warrants a reversal of the judgment, and, with the concurrence of all the judges, it is affirmed.