126 Mo. App. 553 | Mo. Ct. App. | 1907
Action by real estate brokers against their principal to recover a commission. Plaintiffs had judgment for the full amount claimed in their petition and defendant appealed. The petition is in two counts, but as the court instructed the jury to find for defendant on the second, we are concerned only with the cause of action pleaded in the first.
It is alleged in the petition that plaintiffs “are a
In the answer, defendant, in addition to a general denial, alleges that “at the time in plaintiffs’ petition mentioned and set out, one John J. Piatt, the father of this defendant, was the owner of two several tracts of land in Chariton county, Missouri, amounting to about 489 acres, and one J. R. Piatt, the defendant’s brother, was the owner of a tract of land in Chariton county, Missouri, amounting to about thirty acres. That the said John J. Piatt and J. R. Piatt, late in the year 1904, exchanged said several tracts of land with one A. D. Smith of Pawnee county, Kansas, for a tract of land in Kansas belonging to said Smith at said time. . . . That in negotiating for and making said exchange said W. P. Cook and G. B. Kerr were the agents of the said A.
Plaintiffs admit, in their reply, that they were the agents of Smith and were paid a commission by him for making the trade, but state that both the defendant and Smith knew of the dual employment and consented thereto.
It appears from the evidence introduced by plaintiffs that in 1904, plaintiffs Cook and Kerr were partners engaged in the business of real estate agents at Chillicothe. In March of that year, they were employed by A. D. Smith, who lived in Kansas, to sell or exchange for Missouri land a ranch of several thousand acres situated in Pawnee county, Kansas. Plaintiffs previously had been employed by defendant, who was a physician residing at Chillicothe, in another real estate transaction and plaintiff, Cook, solicited defendant to exchange a farm owned or controlled by the latter, for the Kansas land. Negotiations were opened which finally culminated in a proposal made by defendant that if plaintiffs would effect an exchange for the Kansas land of a farm of 519 acres in Chariton county, Missouri, on which de
When defendant went with plaintiff Cook to inspect the Kansas land, he was accompanied by his father and brother-in-law. Of the Missouri land, thirty acres belonged to the brother of defendant, 278 acres to his father and 211 acres had descended from his mother to five children, of whom defendant was one, but before the transaction in controversy, defendant had conveyed his interest to his father. Explanatory of the purpose of the visit of his father and brother-in-law to the Kansas land, defendant told Mr. Cook (so the latter says), “that he (defendant) had an option on the Chariton county land at $40.00 an acre and they (the father and brothed-in-law) were to decide whether they wanted their interest out there or he buy them out and take the whole thing himself.”
The first questions to receive our attention will be those relating to the contention of defendant that the learned trial judge erred in refusing his request for an instruction in the nature of a demurrer to the evidence. The sufficiency of the allegations of the petition to sustain the judgment is challenged on the ground that as there is no specific averment that plaintiffs Cook and Kerr were partners at the time of the alleged employment and that defendant contracted with them as a partnership, evidence of an agreement between defendant and plaintiffs as partners, or between defendant and plaintiff Cook, will not support the cause of action pleaded which is based on a contract made between defendant and Cook and Kerr, not as partners, but as joint contractors. In support of this argument, we are cited to Bank v. Campbell, 34 Mo. App. 45; Timber Co. v. Railroad, 180 Mo. l. c. 466; Van Hoosier v. Dunlap, 117 Mo. App. 529; Myers v. Railroad, 120 Mo. App. 288.
The only reasonable inference to be drawn from the evidence of plaintiffs is that while Cook personally made the agreement with defendant, it was the intention and purpose of both parties that the services of the partnership should be engaged. We do not find any variance between allegation and proof. In alleging the partnership, the petition does speak in the present tense, but we think a reasonable construction of this pleading, taken
Defendant says next that there is no evidence in the record tending to show he agreed to pay a stated amount as a commission. Mr. Cook testified: “Dr. Piatt said if he could get that 520 acres oil at one hundred dollars an acre ‘I. will pay you the nicest commission you ever made/ I said ‘what do you consider nice commission/ He said ‘you know when you sold my eighty acres I told you I would see you got $1.50 an acre for every acre you handled after this’ and he said ‘I will give it/ 77 This certainly was explicit on the subject of the amount of the commission and'sufficient to raise an issue of fact.
Further, it is urged that “plaintiffs failed to prove a constitutive fact alleged by them in their petition, viz., that defendant was the owner of the farm in Chariton county, Missouri, containing 519 acres/7 It was not required of plaintiffs to prove that defendant, at the time of the employment, was vested with the record title to the land. In alleging that defendant “was the owner of and had charge and control of a large farm in Chariton county, Missouri, containing 519 acres,77 etc., plaintiffs did not restrict the scope of their cause of action to one based on a contract made with the owner of the record title, but placed themselves in a position to shoAv that their employment was by one who claimed only to
Another argument is that as it is conceded plaintiffs were also the agents of Smith and it appears that the owners of the Chariton county land (defendant’s father, brothers and sisters) did not know of and, therefore, did not consent to, the dual employment of' plaintiffs, a recovery will be precluded under the rule that an agent can not act for both parties to a transaction whose interests are hostile, except with the knowledge. and consent of both parties. This contention must certainly spring from a misconception of the nature of the cause of action asserted by plaintiffs, as well as from a misunderstanding of the evidence adduced in support thereof. Plaintiffs do not claim to have had any contractual relation with the record owners of the Missouri land. They are not made parties to the suit and the cause asser: ted is founded on a contract made with defendant alone as the holder of an option on the property and not as the agent of the owners. If, as they insist, plaintiffs had no contract with the owners, then they owed no duty to the latter, and we know of no principle under which they were required to obtain the consent of strangers to their contract.
Finally, it is said, the fact was brought out in evidence that, in attempting to serve two masters, plaintiffs acted in bad faith toward both, in this: They at
Cases of this character are no exception to the general rule that the burden of pleading and proving fraud is on him who holds the affirmative. We fail to perceive even a suggestion of legal or moral turpitude in the acceptance by the agent of employment from both parties to the transaction where both, with full knowledge of the facts, consent to the arrangement. To say, as some authorities have said, that such service is inimical to principles of public policy, would be to say that parties to any sort of business transaction have no right to enlist the services of a third person to aid them in the negotiation and closing of a trade, however neces
No error was committed by the trial court in refusing to go into an issue not made by the pleadings. The demurrer to the evidence was properly overruled. What has been said sufficiently answers other points made by defendant.
The judgment is affirmed.