41 Mo. App. 48 | Mo. Ct. App. | 1890
This is an action by plaintiffs, who are real-estate agents, to recover from the defendants a compensation agreed upon for effecting an exchange of his property. It was agreed upon the trial that the plaintiffs were entitled to recover the sum of one hundred and fifty dollars, the amount actually recovered, provided that they were entitled to any compensation under the facts shown. There is very little controversy touching the facts, which the trial court, sitting as a jury, as appears by its declarations of law, found to be as follows :
The defendant placed his farm in the hands.of plaintiffs for sale or exchange. The plaintiffs found a customer named Maus, who was willing to exchange some town property, owned by him, for defendant’s farm, on terms satisfactory to both parties. Owing to the facts hereinafter stated, the title papers could not be at once exchanged, and the parties executed a preliminary agreement. This agreement bore date August 18, 1886, and contained the following provisions : Each party was to make a perfect title to the other of the property given in exchange, subject to certain incumbrances mentioned in the agreement, and each party was to furnish an abstract of title to the other. Possession was
■ These being the facts established by the evidence, the judgment of the couz’t is now challenged by the defendant on two grounds : The defendant claims that, as his inability to make perfect title was known to the plaintiffs at the date of the agreement, and as such inability was not removed prior to November 1, 1886, the trade fell through, for causes within the contemplation of all parties. He also claims that, as no abstract of title or bond for a deed was ever tendered to him by Maus, he was under no obligation to consummate the trade, even if otherwise bound to do so, by executing a bond for a deed.
Neither of these propositions is tenable. It is true that all parties knew, at the date of the agreement, that
The second proposition contended for by the defendant is equally without merit. Conceding, for the sake of argument only, that the plaintiffs, besides securing a purchaser, rested under the further obligation of getting the purchaser to carry out his agreement, yet they were not bound to show a tender on the part of Maus of the abstract of title or bond contemplated by the agreement. Proof that a tender, if made, would have been unavailing, dispenses with the necessity of a proof of tender, even in those actions where a tender is essential to a recovery. Deichmann v. Deichmann, 49 Mo. 109; McManus v. Gregory, 16 Mo. App. 375.
the judgment is affirmed.