Lane v. Cunningham

171 Mo. App. 17 | Mo. Ct. App. | 1913

NORTONI, J.

This is a suit by a real estate broker for his commissions. At the conclusion of the •evidence on behalf of plaintiff, the court peremptorily •directed a verdict for defendant, which was given and judgment entered thereon. From this judgment plain-fiff prosecutes the appeal.

It appears plaintiff is a real estate broker and maintains an office as such in the city of St. Louis. Defendant owned a six-story building, situated at Eighth and Lucas streets in the same city, which he •desired to sell. Plaintiff had negotiated a sale of other property for defendant several years before and had received Ms commission therefor. The evidence tends to prove that in September, 1903, defendant authorized plaintiff to sell his building at Eighth and Lucas and agreed to pay him the usual commission for services. The price fixed on the property at that time was $125,000, but this was afterwards modified. Nearly two years afterwards plaintiff learned that the firm of Meyer-Bannerman and Company' was in the market for a building of the character of that owned by defendant, and called upon defendant in June, 1905, touching the matter. He did not inform defendant as to whom he sought to sell the property, but did inform him at that time that he had a prospective purchaser for the property. Defendant said, “Well, I am anxious to sell the property. I am asking $125,000 for it but I will take less. What you want to do is to get me a proposition on'the property.” Defendant instructed plaintiff to go ahead and get him a proposition on the property and said, “I would just as leave pay you the commission as any one. ” “If you will sell it, you can get your commission and I will pay it to you.” The following morning plaintiff called upon Mr. Isaac Meyer, of the firm of Meyer-Bannerman and Company, and took up the matter of the sale of defendant’s property to him or his company. Mr. Meyer accompanied plaintiff to the property and through it. It appears that plaintiff and Mr. Isaac Meyer went to the topmost floor of defendant’s building in the ■elevator and passed: down through the building from floor to floor while Mr. Meyer made such an examination as he desired with respect to the same. Mr. Meyer became interested in the property, immediately and while yet within the building said to plaintiff, “I am going to buy this property.” TMs occurred on Thursday. Mr. Meyer inquired of plaintiff as to whether or not defendant would accept some other property in exchange and plaintiff told him that he thought defendant wanted cash. Mr. Meyer did not submit a proposition to plaintiff but said only, “I am going to buy tbis property.” After some discussion, plaintiff took bis leave of Mr. Meyer, but did not call upon defendant nor inform bim of tbe prospective purchaser nor of tbe likelihood of a sale, for the reason, as be says, that be bad no definite proposition from Mr. Meyer to submit. A day or two later plaintiff learned that an architect bad been through defendant’s building and examined it on Friday, or tbe day following that on which be interested Mr. Meyer therein. On tbe following Monday, plaintiff called upon Mr. Meyer to further press tbe sale of tbe property, when Mr. Meyer said to bim, “John, where have you been tbe last couple of days?” Plaintiff replied, “Well, Ike, I have been quite a busy man in selling real estate, and I thought it will take some time to digest tbe proposition at tbe beginning.” To tbis Mr. Meyer replied, “John, Cunningham (defendant) has been here.” Plaintiff asked Mr. Meyer, “Ike, did you tell bim we were through the building?” and Mr. Meyer replied, “Well, no, Mr. Maginn, bis lawyer, came here and bim and Jake (Mr. Meyer’s brother, and a member of tbe same firm) took it up and be said be wouldn’t pay a cent for a commission.” It was further shown that defendant sold tbe property to plaintiff’s customer, Meyer-Bannerman and Company, on Monday, tbe first day of July, or within four days after plaintiff first interested Mr. Isaac Meyer in the building, and on which date Mr. Meyer said to plaintiff that be was going to buy tbe property. Tbe purchase price paid by Meyer-Bannerman and Company was $101,500- and tbe evidence reveals that two and óne-balf per cent is tbe usual and reasonable commission for a real estate agent for such sales in and about St. Louis. Plaintiff at no time disclosed to defendant that Meyer-Bannerman and Company, tbe purchaser, or Mr. Meyer, with whom tbe negotiations were bad, was considering tbe purchase of tbe property; nor did he introduce or produce to defendant in person a purchaser for the property, in the literal sense of those terms.

It is to he gleaned from the record that the court directed a verdict for defendant on the theory that plaintiff was not entitled to recover unless he had disclosed to defendant the name of the purchaser and that defendant, notwithstanding, intermeddled and consummated the sale with full knowledge of the fact that plaintiff had interested the purchaser in the property. We do not accede to this view of the law, for, obviously, a real estate broker may be the procuring cause of the sale even though he has not communicated the name of the purchaser to his principal. In a suit at law, it is not necessary to prove every fact by direct evidence, and the jury may infer substantive facts in the case from other facts and circumstances in evidence. The law is well established to the effect that “If after the property is placed in the agent’s hands, the sale is brought about or procured by his advertisement and exertions, he will be entitled to his commissions. Or, if the agent introduces the purchaser, or discloses his name to the seller, and through such introduction or disclosure negotiatons are begun, and the sale of the property is effected, the agent is entitled to his commissions though the sale may be made by the owner.” [See Tyler v. Parr, 52 Mo. 249, 250, 251; Bell v. Kaiser, 50 Mo. 150; Stinde v. Blesch, 42 Mo. App. 578; see also Sidebotham v. Spengler, 154 Mo. App. 11, 133 S. W. 101; Weisels, etc. R. E. Co. v. Epstein, 157 Mo. App. 101, 137 S. W. 326.] All of the authorities declare, in those cases where the sale is actually made by the principal to the agent’s customer, after the agent has interested the customer in the property, that the agent is nevertheless entitled to recover his commissions if he is the procuring cause of the sale, and this is true even though the sale was finally consummated by the owner to the agent’s customer and without the agent’s knowledge. [See authorities supra.] In discussing such, cases and the. principle pertaining thereto, the courts frequently animadvert in the opinion upon the fact, when ,such is the fact, that the agent had produced the purchaser or introduced him to the owner of the property, hut such is not an essential element of the right of recovery.

True, many cases present facts of that character and it is therefore proper to treat with them in the opinion. However, all that is necessary, for the agent to recover in cases of this character, is that he shall he the procuring cause of the sale, and he may be such even though the name of the purchaser was not communicated by him to his principal, the seller.

The Supreme Court affirmed this doctrine in Tyler v. Parr, 52 Mo. 249, 250, as will appear from the following excerpt from the opinion: “The law is well established, that in a suit by a real estate agent fof the amount of his commission it is immaterial tliat the owner sold the property and concluded the bargain. If, after the property is placed in the agent’s hands, the sale is brought about or procured by his advertisement and exertions, he will be entitled to his commissions.” [See, also, Bell v. Kaiser, 50 Mo. 150.] Numerous cases in our reports go to the same effect, for they declare that if it appears the real estate agent is the procuring cause of the sale, he may recover his commissions therefor, though the sale was finally consummated by his principal, the owner of the property, and though the owner at the time had no knowledge that the agent or broker had interested the purchaser in the property. [See Goff v. Gibson, 18 Mo. App. 1; Millan v. Porter, 31 Mo. App. 563, 576; see also Stinde v. Blesch, 42 Mo. App. 578.]

■ The mere fact that plaintiff had not communicated the name of Mr. Meyer, or the Meyer-Bannerman Company, the purchaser, for whom he acted, to defendant is no reason why he should not recover his commissions though the sale was finally consummated by defendant directly to them, if the fact he found that plaintiff was the procuring cause of the sale. Neither does the fact that defendant sold the property at a price less than that at which he had authorized plaintiff to sell it, in and of itself, preclude plaintiff’s right to recover, if it he found that plaintiff was the procuring cause of the sale finally consummated hy the owner. [Stinde v. Blesch, 42 Mo. App. 578.]

When all of the facts and circumstances in evidence are considered, it is obvious the case was one for the jury, for the evidence not only shows that plaintiff interested the purchaser in the property on Thursday — so much so that he said he intended to buy the property — hut it affords a strong inference as well that the purchaser and the owner got together immediately thereafter and concluded the bargain with a view of defeating plaintiff’s commissions. On Thursday, in the latter part of June, plaintiff interested Mr. Isaac Meyer in the property and he said he would buy it. On Friday, it is said, an architect examined the building, and on the following Monday the sale was made by defendant to Meyer-Bannerman and Company. During the interim between Thursday and Monday, It appears that both Mr. Cunningham, defendant, and his attorney, Mr. Maginn, had been in consultation with Mr. Meyer, of Meyer-Bannerman and Company, about the sale of this property, and further that Mr. Cunningham’s attorney had remarked to Mr. Meyer that no commission would be paid. This remark about a commission suggests a strong inference to the effect that defendant knew of plaintiff’s negotiations with the purchaser and that he would probably insist upon a commission. It is entirely clear that the case was one for a jury. The judgment should therefore be reversed and the cause remanded.- It is so ordered.

Reynolds, P. J., and Allen, J., concur.