Kinder v. Pope

106 Mo. App. 536 | Mo. Ct. App. | 1904

ELLISON, J.

Plaintiff instituted this action to recover a commission for the sale of real estate. He prevailed in the trial court. It appears that defendant is a non-resident of this State and that he owned a tract of land in Barton county which he was willing to sell for $10,000 cash. Plaintiff had the land rented at one time, and so had a man named Smith. The evidence tends to show that plaintiff had authorized each of these to sell the property and that each had made some effort with different prospective purchasers. But Smith’s relation to the land and the parties to the controversy is merely a part of the history of the case, since what he did does not necessarily affect the character of plaintiff’s demand. Neither plaintiff nor Smith ever saw the defendant and their connection with him comes from correspondence.

There is no room for two opinions in relation to plaintiff’s authority from defendant to sell at the price named. Plaintiff’s letters to defendant and the latter’s answers show conclusively that he knew of and recognized that plaintiff was endeavoring to sell the land for him. This raised an implied promise to pay him reasonable compensation for such service, if a sale should result through his effort.

The only question of any doubt in the case is as to plaintiff being the procuring cause of the sale. That was a question peculiarly for the jury. The instructions given by the court are unexceptionable and we accept the conclusion of the jury as binding on us, sup-ported as it is by ample testimony. For, certainly, if the testimony in plaintiff’s behalf is to be believed, there is no ground for declaring the verdict to be against the evidence.

But it is claimed the letters to plaintiff were not written by defendant, nor by his authority. They were signed with defendant’s name by one purporting to be his agent; thus, “George Pope, by R. H. Meade.” They showed on their face that they were answers to letters which plaintiff had written to defendant; in such case the presumption arises of authority in the agent. Taylor v. Steamboat Robert Campbell, 20 Mo. 259, 260; Globe Printing Co. v. Stahl, 23 Mo. App. 453-4, 458; Kloes v. Wurmser, 34 Mo. App. 454, 456; Publishing Co. v. Emerson, 64 Mo. App. 665; Guest v. Railway, 77 Mo. App. 261-2; 1 Greenleaf on Evid. (14 Ed.), sec. 573a, 669. Aside- from that consideration, defendant himself introduced several letters signed in the same way, and thus he has vouched for the authority of Meade.

As already stated, there is no ground for criticism of the instructions given by the court; nor is there any error in refusing those offered by defendant. They merely submitted a theory of defendant, and either directly or inferentially closed the door on plaintiff’s theory. It may be (we can not know) that defendant may have so dealt with plaintiff and Smith as to lay himself liable to both. We- only refer to this for the reason that it is suggested in brief of counsel. But it must occur to any one that a liability to one does not, necessarily, prevent liability attaching for the service of another in the same cause, or service.

Objection is made in the motion for new trial to remarks of counsel in bis argument to the jury. The bill of exceptions does not show the words said to have been used. The mere recital in the motion for new trial is no evidence that they were used.

The action of the court being in every respect proper and there being ample evidence to sustain the verdict we must affirm the judgment.

All concur.