155 Mo. App. 702 | Mo. Ct. App. | 1911
Plaintiffs, appellants here, under the firm name of Duncan & Myers, brought their action against defendant to recover commissions at the rate of one dollar per acre for acting as agents for defendant in selling 640 acres of land in the State of Texas, it being alleged that defendant had agreed to pay them at that rate if they effected a sale of that land or were instrumental in effecting a sale thereof. They aver the sale of it by defendant to one George Hake, whereby they claim that defendant became indebted to them for $640, which they aver he has repeatedly promised to pay but has failed to do. Judgment is asked for that amount and costs.
The answer was a general denial.
The learned counsel for appellant make six points as grounds for reversal: first, that all the instructions given for defendant are erroneous because they exclude the theory that defendant promised to pay plaintiffs after the deal was consummated; second, that there was no evidence in the case tending to show that plaintiffs had ceased in their efforts to effect a sale and defendant’s instructions submitting that issue is not based on any evidence; third, that the instructions are in direct conflict with those given for plaintiffs; fourth, that the evidence falls short of establishing any defense; fifth, that on the undisputed testimony, plaintiffs were entitled to a verdict; sixth, that it has been repeatedly declared by the appellate courts of this state that where a real estate agent is the proximate and procuring cause of the sale being made he is entitled to his commission. We find no error in the instructions given in behalf of the defendant, in omitting to place before the jury the alleged fact that defendant had promised to pay after the deal had been consummated. If plaintiffs desired an instruction on this line, it was for them to ask for it. The instructions given in no manner, excluded this. Nor do we find that the instructions given for defendant are outside of the evidence, lacking in evidence to support them or inconsistent with those given at the instance of plaintiffs. It will be of no practical purpose to repeat the instructions. It is sufficient to say that they fairly cover the case in the different aspects of it presented by the parties, so far as the court was asked to cover it.
This court, in Gamble v. Grether, 108 Mo. App. 340, 83 S. W. 306, announced the rule which has always been adhered to in this state, that the real estate agent is not entitled to a commission on account of property placed in his hands for sale unless he is the procuring cause of that particular sale, except in case of an exclusive agency stipulating for commissions at any event as in Mercantile Trust Co. v. Lamar, 148 Mo. App. 353, 128 S. W. 20. Admitting for argument that it was through the introduction of Hake to. defendant by plaintiffs that they were brought together, it did not follow, and the evidence as found by the jury does not' sustain the contention of the appellants, that plaintiffs were the procuring cause of the sale of this particular 640 acres to this particular man.
The judgment is affirmed.