Fair v. Preston

157 Mo. App. 324 | Mo. Ct. App. | 1911

COX, J.

— This is an action to recover commission as a real estate agent for having sold land belonging to defendants. ' A verdict in plaintiff’s favor was obtained for seven hundred and fifty dollars. Upon motion of defendants a new trial was awarded and plaintiff has appealed.

Plaintiff is a real estate agent living at Willow Springs, Howell county. Defendants also live in Howell county, and were the owners of a tract of 4800 acres of land which had been listed with plaintiff for sale. A party by the name of Pruitt came to Willow Springs and plaintiff had some conversation with him in relation to the purchase of this tract of land. Pruitt and' his companion, Thompson, asked plaintiff to ascertain whether some'property which they owned in Saint Joseph could be traded in on this land, left their card with him, then took the train for Mountain. Grove, some twenty-five miles distant. At Mountain Grove they met another real estate agent by the name of Slaughter with whom this same land had been listed, and Slaughter talked to them about this tract of land, then called up one of the owners over the telephone and had some conversation about the price and the owner then told Slaughter to bring the men down and he did so, and the land was sold to Pruitt.

Plaintiff’s contention at the trial was that he having first interested the purchaser in this land he was entitled to the commission. The contention of defendants was that plaintiff was not the procuring cause of the sale, but that the sale was made through Slaughter, independent of anything plaintiff had done. The defendants in their motion for new trial alleged ten reasons why the verdict against them should be set aside, among which áre that the court erred in the instructions to the jury given on behalf of plaintiff and because the verdict is against the weight of the evidence.

The court in the order sustaining the motion for new trial did not specify the reasons therefor as required to do under the statute, section 2023, Revised Statutes • 1909. But notwithstanding this fact, yet if the court’s action in sustaining the motion for new trial can be upheld for any reason assigned in the motion it should be done. [Lead & Zinc Mining Co. v. Webster, 193 Mo. 351, l. c. 363, 92 S. W. 79; Sharp v. Odom, 121 Mo. App. 565, 97 S. W. 225; Johnson v. Grayson, 230 Mo. 380, 130 S. W. 673.]

The trial court should be allowed a very wide discretion upon the question of granting a new trial, and if it should be granted upon the ground that the verdict is against the weight of the testimony, the order sustaining the motion for new trial should be upheld, unless it is clear that the trial court had abused its discretion in sustaining the motion. [Berryhill v. Supreme Tribe of Ben Hur, 132 S. W. 13; McCarty v. Transit Co., 132 Mo. 396, 91 S. W. 132; Somerville v. Stockton, 178 Mo. 121, 77 S. W. 298; Hawver v. Springfield Traction Co., 134 S. W. 70; Johnson v. Grayson, 230 Mo. 380.]

In this case the evidence was conflicting as to whether plaintiff really had anything to do with the sale, or whether it was consummated through the agency of Slaughter alone. The trial court may very well have concluded that upon that question the evidence preponderated in favor of defendants. In fact, one could hardly read the testimony in this case, as preserved in this record without being forced to that conclusion; hence, there is no ground to say that the trial court abused its discretion in sustaining the motion for new trial:

The first two instructions given on behalf of plaintiff were based upon the proposition that defendants had colluded with another real estate agent and secured him to close the deal with the purchaser in order to prevent paying the commission to plaintiff. We find in this record no testimony to Avarrant these instructions. They Avere, therefore, erroneous, and the court’s action in sustaining a motion for new trial should be upheld for that reason also. Judgment affirmed.

All concur.