133 Mo. App. 605 | Mo. Ct. App. | 1908
This action was brought for commission charged to be due plaintiff by reason of a sale which plaintiff alleges he made of defendant’s real estate. The judgment in the trial court was for the defendant.
There Avas evidence tending to prove that defendant placed a tract of land with plaintiff for sale; that one Jenne was attracted to plaintiff’s office in Kansas City by his advertisement of lands; that while this advertisement did not include defendant’s land, yet plaintiff referred him to it, pricing it at $135 per acre. Jenne Avent out on that or the next day and went upon the land; on the next day he telephoned plaintiff that he did not want the land and that he intended to go to look at a farm in Kansas. Three days thereafter plaintiff wrote to Jenne saying that he had been looking-for him to come to his office to see about buying a farm in Kansas; that he had some bargains there and for him not to fail to come as he “wanted to sell him a bargain.”
On the second day after Jenne had refused to take defendant’s land, as above stated, he again went out to see it and there met defendant’s tenant, who was au
The foregoing is substantially what the trial court found to be the facts and from them he found that plaintiff was not the procuring cause of the sale. We think there was evidence to support such finding.
Objection is made to the action of the court on instruction. That, however, cannot influence our conclusions. The trial was without a jury and the instructions are only useful as showing the theory upon which the court rendered the judgment. But in this case the court made known his theory, and it is sustained by the law. [Missouri Smoke Preventer Co. v. St. Louis, 205 Mo. 220, 232; Vandiver v. Robertson & Son, 125 Mo. App. 307.]
But aside from these considerations, our conclusion, based upon the record, is that the judgment was for the right party, and should be affirmed.
