131 Mo. App. 214 | Mo. Ct. App. | 1908
Action by a real estate broker to recover a commission alleged to be due him on account of the sale of a farm owned by defendant. Verdict and judgment were for defendant and the cause is here on the appeal of plaintiff, who argues that prejudicial errors were committed against him by the trial court in the admission of evidence and in the instruction of the jury-
At the times mentioned in the evidence, plaintiff Was engaged in the business of real estate agent at Slater in Saline county. Defendant was the owner and occupant of an exceptionally well improved farm of
Plaintiff did not inform defendant of what had occurred between him and his prospective customer, being fearful that “when there was $900 involved somebody might slip in and beat you out of it.” Ignorant of the fact that plaintiff had a customer in hand, defendant, a week later, listed the farm with Haines Brothers, real estate agents at Arrow Rock, another town in Saline county. In the afternoon of August 15th, Charles and Henry Leimkuhler accompanied by the Haines Brothers appeared at defendant’s farm, looked it over, and the next morning decided to buy it at $100 per acre. A conveyancer was procured from Slater, who came out and prepared the necessary papers. The deed was made to Henry Leimkuhler on the request of Charles who explained that he (Charles) had bought Henry’s interest in the McClelland farm and that Henry had concluded to buy another farm for himself. While the negotiations were in progress, Charles remarked that he believed the farm was one mentioned to him by plaintiff, whereupon defendant, to avoid the possibility of being compelled to pay a double commission, refused to proceed with the transaction unless Haines Brothers would guarantee him against liability to plaintiff. Accordingly, such guaranty was given and defendant paid the commission for the sale to Haines Brothers who gave $200 of the money thus received to Charles as a present.
On behalf of defendant, the evidence tends to show that Hainés Brothers had conducted previous dealings with the Leimkuhlers, were tenants of a farm they owned and were on very friendly terms with them, and that the Leimkuhlers came uninvited to Arrow Rock for the purpose of looking at land near Slater with a
“He (Charles) came to my house, he and his cousin, Henry Leimkuhler, and stayed all night on the night of the 14th. That morning I showed them a farm close to Arrow Rock. They said it didn’t suit them and asked, me if I had any other farms for sale. I told them that I had.. I had a farm belonging to Willis B. Arnold northwest of Slater. It was a fine farm and all in grass excepting 120 acres. It has an $8,000 house, well fenced, good windmill, steel tanks and reservoir; and we went on then to the other farm known as the McClelland farm and ate our dinner and they agreed there whichever one was satisfied that the other would buy the other one out of the McClelland farm. They owned it in partnership. After they got in the surrey and started on, one of them' asked where we were going. I said we were going to see the Arnold farm and described it again. They said, ‘all right, we will go.’ I went around by Orearville through the western part of Slater out to Mr. Arnold’s and got there about night and about a half hour by sun we looked over west of the barn and the next morning we went over the farm and got back to the house about ten o’clock and Mr. Charles Leimkuhler and me sat down in front of his place on a rock there and he says, ‘Well, Haines, I am going to buy this farm.’ I said, ‘I am glad of it. I am going to make you a present of $200, inasmuch as you men have bought land from me before.’ He said, ‘That is all right.’ ” Henry Leimkuhler testified to the same effect. Charles Leimkuhler died before the trial began.
Other facts and circumstances appear in the record which we do not deem of sufficient importance to relate. Suffice it to say that plaintiff made out a case to go to the jury on the issue of whether his conversation with Charles Leimkuhler was the procuring cause of the
At the request of plaintiff: (1) “If the jury find and believe from the evidence that prior to the sale of the land described in the petition, by the defendant to Charles Leimkuhler, the plaintiff had said land listed for sale at the defendant’s request and as agent for the defendant,, and that on the 5th day of August, 1905, the plaintiff met Charles Leimkuhler at the city of Slater and fully described said farm, buildings and improvements to said Leimkuhler at the price and sum agreed upon between plaintiff and defendant and offered to shoAv said farm to said Leimkuhler, and that said Leimkuhler promised to return, go and see said farm and purchase the same through plaintiff from the defendant, provided the same suited him, and that said Leimkuhler did, on the 16th day of August, 1905, return and close said trade with defendant, and if the jury further believe from all the facts and circumstances in evidence that the said Leimkuhler was led to buy said farm, and the closing of said trade by reason of the information given him by the plaintiff concerning said farm, then the verdict must be for the plaintiff, and this is true notwithstanding the fact that said Leimkuhler was taken to said farm by another agent or party, and such other agent or party AVas actually present at the time said sale was closed.”
(2) “If the jury find and believe from the evidence that the plaintiff procured a purchaser in the person of C. Leimkuhler, for defendant’s farm or was
For defendant: (1) “The court instructs the jury that defendant had the right to place his farm in the hands of as many real estate agents for sale as he desired, and if you find and believe from the evidence that the sale of farm was made to Charles Leimkuhler by and through the efforts of Haines Brothers, real estate agents, and that Leimkuhler was induced to go and look at the Arnold farm at the instance and request of said Haines Brothers, and that plaintiff did not induce him to look at, bargain for and purchase said farm, and that said Haines Brothers were the procuring cause of bringing said Leimkuhler and Arnold together, and were the procuring cause of said Leimkuhler purchasing said farm, then the plaintiff has no claim for compensation for the sale of said farm, and your finding will be for the defendant.”
(2) “The jury are instructed that before you can find for the plaintiff, you must find and believe from a preponderance of the evidence that is the greater weight of the credible testimony, that Leimkuhler was induced to buy the defendant’s farm by and through the efforts of plaintiff, and that plaintiff was the procuring cause of said sale being made. It is not sufficient that the plaintiff may have called Leimkuhler’s attention to the Arnold farm, and informed him that it was for sale, and described it to him and tried to sell the same to him some time before Leimkuhler purchased it, unless you find from the evidence that by reason of what was done and said by plaintiff, Leimkuhler was induced to buy said farm.”
We think the objections urged against the instructions given on behalf of defendant are not well taken. What we said in Hartsook v. Chrissman, 114 Mo. App. 558, evidently has been misunderstood and misapplied
Prom the facts and circumstances before them, the jury reasonably might have- believed that the conversation plaintiff had with Charles Leimkuhler made no lasting impression on his mind, did not influence him to return to Saline county and that he and his cousin were directed to the Arold farm by the efforts of Haines Brothers. Defendants were entitled to have this hypothesis of facts submitted to the jury and if accepted by them it then would become their duty to return a verdict for defendant on the ground that plaintiff had failed to establish one of the facts constitutive of the
Over the objections of plaintiff, defendant’s witnesses who were present at the making of the sale were permitted to testify to the conversation between the parties relative to the indemnification of defendant against a possible claim on the part of plaintiff to the commission. In the course of the conversation, Charles Leimkuhler stated, in effect, that what plaintiff had said to him had passed entirely out of his mind until about the time of his arrival at the farm. The objection to the whole conversation is based on the ground that what the parties said to each other during the progress of the negotiations was hearsay as to plaintiff who was not present and, therefore, should not be bound by what others might say in his absence. We might answer the objection by saying that as plaintiff himself first went into the subjects of this conversation, he is in no position to complain of defendant’s meeting an issue thus raised, but we prefer to place our ruling on a different ground. As we have said before, one of the principal issues of fact to be solved by the jury was the question of the effect produced on the mind and purposes of the purchaser by the conversation he had with plaintiff. That question could not be answered correctly except in the light of subsequent acts and declarations of the purchaser in and about the purchase of the farm. Such declarations made in the presence of defendant were not hearsay but were oral acts of probative value. They directly tended to evidence the true nature of the procuring cause and for that purpose were admissible. [Folks v. Burnett, 47 Mo. App. 554; 19 Cyc. 283, note 59; McGuire v. Carlson, 61 Ill. App. 295; Hunn v. Ashton, 96 N. W. 745; Goldsmith v. Cook, 14 N. Y. Supp. 878.]
A careful inspection of the whole record convinces us that the case was properly tried and submitted to the