— This is a suit by a real estate agent to recover commission for the sale .of defendant’s property in Kansas City.
The parties do not differ materially about the facts. As set out in the briefs, they are as follows: In-September, 1906, the defendant House owned certain real estate in said city. His son, F. E. House, was an attorney and engaged in the practice of the law. The plaintiff was a real estate broker and had in his employ a Mr. J. H. Hollister. Hollister learned that defendant’s property was for sale and found upon inquiry at his place of business that he was out of the city. He was directed to apply to the son, F. E. House. He saw Mr. F. E. House and offered to furnish a purchaser for the property, if it could be purchased for $3,500, terms cash $100, the balance in deferred $30 monthly payments, commission to be paid out of the installments as paid by the purchaser. The son telegraphed to his father for instructions, which in a short time resulted in defendant directing him “to go ahead and sell at that price.” Neither plaintiff nor Hollister ever saw either of these telegrams. After receiving the instructions to sell, the son informed Hollister that “the sale could be made” at the price named. Hollister then showed the property
On October 10th, when the papers between defendant and the purchaser had been exchanged, plaintiff drew his check to the order of defendant for the $100, the deposit in his hands as agent of the seller, which was turned over to the son, who endorsed defendant’s name thereon, cashed it and accounted for the proceeds, since which time all of Beeson’s dealings in reference to the business have been with the son.
At the foot of the contract for the sale of the property is a memorandum fixing the amount of commission and the manner of its payment, which contract was signed by the son. He testified that he did not understand that he was making any agreement as to commission and that he never attempted to do so except as to show it should be paid.
The parties do not agree in every particular as to what was agreed as to the amount of the commission. -The son contended that it was agreed that plaintiff was to have $150, which Hollister denies. The regular commission in such cases was $162.50.
The suit was instituted in a justice’s court. In the circuit court, plaintiff was allowed without objection on the part of defendant to elect to treat the statement as declaring on a cause of action for services rendered. A jury was waived and the cause was tried before the court which rendered a judgment for plaintiff in the sum of $162.50. The defendant appealed.
Also this instruction, “The court declares the law to be that, even though plaintiff performed services which resulted in a sale of the property in question by defendant, plaintiff cannot recover unless defendant either had employed him to perform such service or made the sale with the knowledge that the purchaser had been procured by plaintiff’s efforts, and the burden of proving such employment or such ratification is upon plaintiff.”
The court gave the first and refused the last declaration.
The only question presented by the appeal is the plaintiff’s right to recover under the evidence. It is contended by appellant that F. E. House had no authority from defendant to appoint plaintiff as his agent for the sale of the property and that there was no ratification of such appointment. ' Plaintiff’s position is that such authority existed notwithstanding none was expressly conferred.
It is said, “Where in the execution of the authority an act is to be performed which is of a purely mechanical, ministerial or executive nature, involving no elements of judgment, discretion or personal skill, the power to delegate the performance of it to a subagent may be implied. Thus an agent empowered to execute a promissory note, or to bind his principal by an accommodation acceptance, or to sign his name to a subscription agreement, having himself first determined upon the propriety of the act, may direct another to perform the mechanical act of writing the note or
“The authority of the agent is always construed to include the necessary and usual means to execute it properly.” [Idem, sec. 194.] And so is the rule expressed in Clark & Skyles on Agency, p. 778.
The question in a somewhat different manner arose in Sanguinette v. Webster, 153 Mo. 343. The court said, “While the defendants were invested by the contract with the power and charged with the duty of selling, the duty to sell was as holders of the legal title for the benefit of the concern, and as such sales are ordinarily best effected through agencies as were here employed, for which commission is usually paid, and as the commission in this instance was a reasonable one, it should have been allowed as part of the expenses contemplated by the contract.” The agents employed were real estate agents.
“While an agent may not delegate his authority, yet if he employ a subagent to perform his ministerial duties, such as soliciting loans, the declarations of such subagent while engaged in the transaction are competent evidence against the principal.” [Bowman & Co. v. Lickey, 86 Mo. App. 47.]
We are of the opinion that the rule of law that an agent authorized to sell real estate, who is clothed with the discretionary power as to the price and terms, has no application to the facts of the case, for the reason that the price and terms were fixed by the defendant, and that F. E. House was only clothed with the ministerial power to sell at the price and
If the judgment is upheld it must be on the ground that the defendant ratified the act of his agent. There is no direct proof of that he did so. In fact both the defendant and P. E. House testified that the latter did not inform defendant that he had employed plaintiff to procure a purchaser for the house prior to the final consummation of the sale to the purchaser, by conveyance. Hollister, plaintiff’s agent, referred to the fact that defendant had offered to pay $75 on plaintiff’s demand. It was excluded as it was an offer to compromise. He was then asked as follows: “When this offer was made by Mr. House to pay seventy-five dollars to your people or to you, was there anything said at that time about any compromise? Were you not asking him to pay $150, and he told you he would pay you $75? Wasn’t that about it?” A. “That is what he said, that he would give me a check for it or give us a check for it instead of waiting for it to come in on the notes.”
Plaintiff claims however that the judgment can be upheld on the ground that the defendant ratified the act of his agent in carrying out the contract. The defendant, it is true, ratified the contract of sale made by his agent and conveyed the property to the purchaser; but in so doing we are not to consider that he ratified his act,in employing plaintiff to find a purchaser for it. He was bound to comply with the contract in that respect, because he had authorized it to be made. But there is no direct evidence to the effect that he then knew of plaintiff’s employment. If
As the judgment is not sustained by the evidence the cause is reversed.