119 Mo. App. 483 | Mo. Ct. App. | 1906
In 1903 the' defendant owned an eighteen-hundred-acre tract of land in Wayne county. Missouri, about eight hundred acres of which was in cultivation; eight hundred and forty acres, or thereabout, lie in the hills and are unsuitable for cultivation. Being desirous of selling the tract, defendant appointed Mrs. H. O’Brien, of Ironton, Missouri, his agent to sell the land on an agreed commission. Afterwards Mrs. O’Brien, with defendant’s consent, engaged the services
“Williamsville, Mo., Sept. 17, 1903.
“I hereby confirm my agreement made with E. P. Ewart and Mrs. H. O’Brien which was to sell and deed to them or to any party designated by them my farm of eighteen hundred acres adjoining the town of Williams-ville, Wayne county, Missouri, for the sum of seventeen thousand dollars, any amount above seventeen thousand dollars to go to them and their agents as commission for making the sale. You to pay any interest that may accrue on present deed of trust f7,000 before March 10, 1904, when land is to be deeded.
(Signed.) “John W. Young.”
After the sale of the eight hundred and forty acres to Baldwin, it seems some disagreement arose between Ewart and Mrs. O’Brien in respect to a division of the commission. Ewart claimed that Newhouse was entitled to one-third of the commission. Mrs. O’Brien objected to sharing the commission with Newhouse and, on June
The issues were submitted to the court by agreement of the parties. The court found the issues against Mrs. O’Brien but in favor of the plaintiff and assessed his damages at eight hundred and forty dollars. No declarations of law were asked or given.
1. Defendant contends that as the suit is on a contract for the sale and conveyance of lands, the written memorandum of the contract is insufficient to take it out of the Statute of Frauds, and for this reason plaintiff cannot recover. The petition contained a copy of the memorandum agreement.. There was no demurrer filed, nor was the writing objected to as evidence when offered on the trial. The point that the writing is insufficient to take the contract out of the Statute of Frauds was not raised on the trial. It w7as raised for the first time after judgment, in the motion for new trial. The office of a motion for new trial is to call the attention of the court to errors that intervened on the trial, not to raise
2. The court made a special finding that the land was worth eight hundred and forty dollars; also that Mrs. O’Brien had been paid her commission in full. The evidence is, that the commission was to be equally divided between Mrs. O’Brien and' Ewart. Mrs. O’Brien had the right to relinquish her claim or interest in the land to the defendant, and she did this as effectually by the receipt she gave him as if she had given him a formal release. Her interest in the land was not transferred to Ewart, but was surrendered to the defendant, and there is no reason or justice in awarding plaintiff the full value of the land as damages. He is only entitled, under the evidence, to one-half of its value; therefore, it is considered that unless within ten days from the date of the filing of this opinion the plaintiff remit in writing four hundred and twenty dollars of his judgment, the judgment will be reversed and the cause remanded: if a timely remittitur is filed the- judgment will be affirmed for four hundred and twenty dollars.