79 Mo. App. 325 | Mo. Ct. App. | 1899
The charging part of the petition is as follows, “to wit, on or about the 5th day of February, 1895, the defendant McCormick employed the said copartnership of John Grether & Co. as his agent to negotiate for the sale or disposition of two certain pieces, parcels or tracts of land which he, defendant, then owned, distant about one mile from Bowling Green in the state of Missouri, and composed of eight hundred and fifty acres, one hundred and twenty acres thereof distant about one quarter of a mile from the main body of said land, with certain improvements thereon, said property consisting of farm property, and which said defendant valued at $50,000. That defendant upon employing the said copart-, nership of John Grether & Co. authorized it to negotiate for the disposition of his said tracts of land, and that the said copartnership did thereupon endeavor so to do. Plaintiffs state that while the said employment still existed their said firm, in or about the month of September, 1896, ascertained that one John F. Gilbirds owned or controlled a certain piece or parcel of land lying and being in city block No. 3801 of the city of St. Louis, Missouri, and consisting of lots numbered from one to eleven, inclusive, in said block, having together an aggregate front of five hundred and ninety-two feet six
Thefactsasdisclosedon the trial are, that defendant owned the farm and Gilbirds the city property described in the petition, and that an exchange of the one for the other was made by McCormick and Gilbirds at the valuations and on the terms stated in the petition; this exchange was consummated late-in December, 1896. On and prior to February 5, 1895, McCormick had placed his farm lands in the hands of the McCormick, Kilgen & Eule Eeal Estate Company as his general agent for sale, and it remained in the hands of this company until the exchange was made. In response to a letter written him by the plaintiffs, defendant called at their real estate office on or about February 5, 1895, when plaintiffs told defendant they thought they had a man who wanted just such a farm as his, and asked his price; defendant priced his farm at $45,000, and agreed to pay plaintiffs five per cent commission if theycouldsellitor find a purchaser at $45,000, at the same time telling them that the McCormick, Eligen & Eule Eeal Estate Company had his farm for sale, and that he would not withdraw it from that company; that they would have to look to that company to close any deal they might make. Plaintiffs failed to make a sale to their prospective purchaser or to find any purchaser for cash. In September, 1896, the attention of one of the •plaintiffs was called to the Gilbirds property by a newspaper advertisement, and to the fact that Gilbirds desired to exchange it for an improved farm, and on the fourteenth of said month wrote defendant, then in the state of California, as follows:
St. Louis, September 14, 1896.
“Mr. S. T. McCormick, Monterey, Cal.
“Dear Sir: — "We have an entire block of ground in Eose Hill, of this city fronting 492 feet on Page avenue, 66Y feet
“Yours truly,
“John Grether & Co.”
To this defendant replied as follows:
“Hotel Del Monte, September 19, 1896.
“Mr John Grether, Esq., St. Louis, Mo.
“Dear Sir: — Your favor of 14th in reference to trading my farm for a block of ground in the city was received yesterday evening and carefully noted. In reply will say that I expect to be home about the 6th of October and will call on you then and talk the matter over, meantime I will write my son Harry to call on you in reference to the subject. He knows more about the farm than I do.
“Hoping this will be satisfactory, I remain, Yery truly,
“S. T. McCormick.”
Gilbirds was informed of this correspondence -and thereafter made occasional calls at the office of plaintiffs to make inquiry. In October, 1896, Harry McCormick called on plaintiffs and gave, them a description of the defendant’s farm and priced the farm at $50,000 instead of $45,000, and stated to plaintiffs that he would have nothing to do with the proposition to exchange and that his father was too ill to look after the matter, and that plaintiffs would have to see the real estate firm of 'McCormick, Kilgen & Rule, who were his father’s agents. Harry McCormick testified that he did not learn from plaintiffs that Gilbirds wanted to trade his city property for his father’s farm, but that he did learn that he wanted to trade it for some farm, and that Gilbirds valued his property at $60,000. Gilbirds employed J. C. Darst, a real estate agent,
The evidence is clear that McCormick agreéd to pay plaintiffs five per cent commission if they would sell or find a purchaser for his farm at $45,000, and that this contract was not terminated when plaintiffs wrote defendant the letter of September 14, 1896, and it is evident by McCormick’s answer to that letter that he did not decline, but encouraged- the services of plaintiffs to exchange his farm for city property, and it is-undisputed that Gilbirds and defendant’s city agents, Kilgen & Rule, were brought together by and through the instrumentality of the plaintiffs while acting for and on behalf of defendant, in virtue of their original employment and by and with his consent.; this under all the authorities in this state is sufficient to entitle plaintiffs to their commission. Tyler v. Parr, 52 Mo. 249; Timberman v. Craddock, 70 Mo. 638; Galatt v. Ridge, 117 Mo. 553; Bass v. Jacobs, 63 Mo. App. 393; Jones v. Berry, 37 Mo. App. 125; Blackwell v. Adams, 28 Mo. App. loc. cit. 63. The fact that the farm was not sold but exchanged for other real estate, by the defendant’s general agents, does not deprive the plaintiffs of their right to a commission on the value of the property taken in exchange. Henderson v. Mace, 64 Mo. App. 393; Wetzell v. Wagoner, 41 Mo. App. 509; Stinde v. Blesch, 42 Mo. App. 578.
The assignment of errors relied on by the appellant for a reversal are ruled against him, and the judgment is affirmed.