228 Mo. 212 | Mo. | 1910
This suit was instituted to recover the sum of $250, claimed by plaintiffs as commissions due them for selling a lot of real estate belonging to the defendants, situate in the city of St Louis.
The trial before the justice of the peace resulted in a judgment in favor of the defendants; upon an appeal to the circuit court, a trial de novo was had, which resulted1 in a judgment against four of the defendants and in favor of the defendant Amelia A. Altenbaumer,' she not having been properly served. A motion for a new trial was sustained, and plaintiffs duly appealed to this court.
There are a number of errors assigned, but the principal one assails the constitutionality of section 1 of an act of the Legislature, approved March 28, 1903, Laws 1903, p. 161, providing that in cities of three hundred thousand inhabitants or more any person who shall offer for sale any real property without the written authority.of the owner thereof, or of his attorney-in-fact, appointed in writing, or of- a person who has made a written contract for the purchase of such property with the owner thereof, shall be guilty of a misdemeanor.
Upon that state of facts the court, by sustaining the motion for a new trial, held the act in question valid, and, consequently, that plaintiffs were not entitled to a recovery because their authority was not in writing.
This identical proposition was decided adversely to the contentions of defendants by Division No. 1 of this court at its last sitting in the case of Woolley v. Mears, 226 Mo. 41.
Upon the authority of that case we hold that said act is unconstitutional, null and void, and, consequently, plaintiffs are entitled to a recovery in this case, if they were authorized by the proper parties to sell said! real estate; and provided plaintiffs found a purchaser who was able, ready and willing to purchase upon the terms they were so authorized to sell. However, the evidence upon this question was conflicting; and, as the court sustained the motion for a new trial upon the ground, among others, that the verdict was against the weight of the evidence, we have no authority to disturb the order and judgment of the court sustaining the motion for a new trial, for the reason that such an order rests largely within the sound discretion of the trial judge, and should never be disturbed except where the record shows the court has already abused that discretion. No such showing is disclosed by this record.
We, therefore, affirm the order and judgment of the trial court in sustaining the motion for a new trial.
