106 Mo. App. 517 | Mo. Ct. App. | 1904
This action was instituted by plaintiff to recover a commission for the sale of real estate in Kansas City, Missouri, belonging to defendant. The
It appears that the plaintiff resided in Kansas City and that the defendant was at St. Louis, and that they entered into a written contract concerning the sale of the property. This contract was executed on the twenty-first of October, 1901, and was to be enforced for the limited time of ninety days, which period expired January 21,1902. But some ten or twelve days before the limit expired it was extended, by mutual agreement, for a period of thirty days further, such extension expiring on February 21, 1902. Before the contract was •executed, plaintiff thought he could sell the property if he had the exclusive control of it; he had especially in view, as purchasers, a firm of wholesale merchants in Kansas City. We here set out the contract:
“Kansas City, Mo., Oct. 21,1901.
“This memorandum of agreement by and between Washington University, a corporation under the laws of Missouri, party of the first part, of St. Louis, Missouri, and Felix L. LaForee, of Jackson county, Missouri, party of the second part, witnesseth: Said party of the first part for and in consideration of the sum of one dollar paid by second party, the receipt of which is hereby acknowledged, does hereby give the said second party the exclusive option and' privilege, to buy their southeast corner of Eighth and May streets, Kansas City, Missouri (describing it). The price agreed upon by said first party to sell to said second party, is the sum of fifty-six thousand and five hundred dollars, net, for the 150x142 feet, no commission to be paid by said first party.
“Terms: Cash, or one-third cash; deferred payments to bear interest at five per cent from January 21, 1902.
"This contract or option to purchase is to run for ninety days from this date. In the event of purchase*522 by the said second party, or his assigns, the said first party is to convey said real estate free and clear of all encumbrance, except West Terrace Park assessment and they also agree' to furnish a complete abstract from government down to date; also certificates as to judgment and taxes.
“In the event second party elects to buy said real estate within the time herein agreed, or sells the same, the said first party is to give the second party, or his assigns, thirty days extra time to examine title and close the deal. Said thirty days extra time is to date from the date of expiration of this contract.
“In the event s'aid second party fails to take advantage of the terms of this contract, as herein specified, this instrument becomes void. ’ ’
On the reverse side is the following:
“St. Louis, Mo., Jan. 10,1902.
“By mutual consent the above contract is extended until February 21,1902. ’ ’
During the first ninety days’ period plaintiff made diligent effort to sell, but towards the latter part he saw he would not be able to consummate a sale within the time limited and he sought an extension for another period of ninety days. The defendant refused that length of time, but did extend the contract for a period of thirty days, as already stated and as is shown in the copy just set out. Plaintiff faithfully pursued his endeavor to sell through the extended time but without success. He endeavored to obtain another extension within which he hoped to make a sale, but defendant refused. Several months after the expiration of the extended time, defendant sold the property to the wholesale firm with whom plaintiff had béen negotiating from the beginning. Plaintiff claimed the usual and customary commission on sales of that magnitude which defendant refused to pay, contending that it was under no obligation to pay any amount.
So conceding that the contract made plaintiff an agent to sell, it is manifest that such agency was a definite and limited agency in the following particulars, viz.: that it was for a specific period (including extension) of one hundred and twenty days from October 21, 1901; that the price should be $56,500; and that there was to be no commission charged. It is coneeded that the sale was not made within the time limited. Now, the law is that even where there is no specific time named as limiting the agency, and a reasonable time elapses without a sale (circumstances considered) the
By much greater reason therefore should it be said that, where parties stipulated that an agency to sell another’s property is limited to a definite period, it will terminate at that period; and if a sale has not been made within the time, no compensation (in the absence of' fraud) can be recovered on account of a subsequent sale by the owner. The law has been repeatedly so declared. Page v. Griffin, 71 Mo. App. 524; Beauchamp v. Higgins, 20 Mo. App. 514; Steadman v. Richardson, 100 Ky. 79, 83; Autisdel v. Canfield, 119 Mich. 229, 236. Mechem in his work on Agency, sec. 965, says: “It will be seen from this rule that when the time is limited the performance must be within that tim& and the broker will not be entitled to commissions because efforts begun within that time bear fruit after its expiration.” It seems that the plaintiff must have recognized that such was the law, for he incorporated in the contract a stipulation which protected him, in ease the time should expire after he had made the sale, but before it was consummated, viz.: that in the event he should sell the property “within the time herein agreed,” the defendant would give “thirty days’ extra time to examine the title and close the deal.”
And that is not all: if the contract is to be construed as creating an agency, it was not only for a specific time, but it was authority to dispose of it for a designated net sum, without commission. The contract and the subsequent correspondence of the parties disclose, without doubt or question, that the parties understood that defendant would be satisfied to receive .the amount named and that plaintiff was to have all over that amount he could obtain for the property. Upon
But plaintiff submits as a part of his theory of the case, and as justifying his appeal from the judgment of the trial court, that he “had implied authority to act as the agent of defendant from the twenty-first of February, 1902, until the twenty-sixth of March, 1902,” when, as is claimed, defendant curtly wrote him that it did not consider he had any interest in the matter. There is nothing whatever upon which to base this contention. In support of it a great deal was said in argument about a. letter which defendant wrote to plaintiff dated February 12, 1902, in reply to plaintiff’s letter asking for another extension of his time. Plaintiff interprets the letter as supporting his contention. It reads as follows:
“February 12, 1902.
‘ ‘ Dear Mr. LaForee: I have your letter of February 10, and have discussed the matter of renewing your option with Mr. Brookings. He has decided not to extend the option further. He feels that the time is approaching when, if ever, we must sell the property, and he prefers to keep this in his own hands. We hope you can place it, and would be very glad to assist you in doing so.”
It is too plain for doubt that the letter does not bear such interpretation. It is the last sentence upon which plaintiff relies. That sentence refers to the time yet remaining to plaintiff — the period between the date of the letter, and the expiration of the extended limit which had been given him. He was in constant hope
It would be most unreasonable to interpret the letter of. February 12 as authorizing an agency apart from, and outside of the contract. It would have been an agency without naming price and terms of sale, or compensation for selling.
The foregoing discloses that in our opinion, the law is absolutely against plaintiff’s case, considered from any legitimate standpoint of the record. Our view of the law makes it wholly unnecessary to consider many points Aged by plaintiff in argument. Though we will add that, if the correspondence between the par
In view of the foregoing we feel constrained to affirm the judgment.