169 Mo. App. 680 | Mo. Ct. App. | 1913
This action is on a contract whereby it is alleged defendant promised to pay plaintiff one hundred and fifty dollars. It was begun before a justice of the peace and on appeal to the circuit court judgment was rendered for plaintiff.
It appears that plaintiff is a real estate agent and that she was employed by one Lemon to bring about and consummate an exchange of Kansas City real estate. She performed that service by finding a party named Schermerhorn with property be was willing to exchange. She brought the parties together, an agreement was had and a written contract of exchange entered into. Before the exchange was actually made it appears that this defendant appeared and entered into a written contract with Lemon whereby he became substituted for Lemon, or rather bought out Lemon’s interest in the contract of exchange. We are left to .assume that defendant would, in some way, get the
It will be observed that defendant was to give Lemon for his interest in the contract, .fifty feet of the ground he was to get of Schermerhorn, and it will' be further observed that defendant was to pay plaintiff “$150 for her assistance in the said transaction, . . . only on condition that Musson and Schermerhorn consummate the contract according to its terms.”
Plaintiff has not based her action on the state of facts as above set forth. On the contrary she has made it appear by her petition that defendant employed her to bring about an exchange of property between defendant and Schermerhorn and that she “se
All defendant did in connection with plaintiff was to agree (conditionally) with Lemon to pay his debt to her. And for this there was no consideration. To constitute a valid novation there must be a' release of the old debtor and a valid agreement with the party sought to be held. [Davis v. Dunn, 121 Mo. App. 490; Brown v. Croy, 74 Mo. App. 462; Edgell v. Tucker, 40 Mo. 523.] But we need not pursue this branch of the subject since .plaintiff concedes the facts proved do not constitute a novation and the brief proceeds in the effort to hold defendant as though the service, in fact performed for Lemon, had been performed for defendant.
But in addition to the foregoing, as has been.al- ‘ ready observed, defendant’s contract with Lemon to pay plaintiff the $150, was conditioned that the exchange between defendant and Schermerhorn was consummated, and it never was. Conceding that defendant had no right under such contract to arbitrarily
The judgment is reversed.