31 Mo. App. 563 | Mo. Ct. App. | 1888
I.
Under the instructions given in the case the jury could not have found for the plaintiffs without finding also that the defendant did not at the time of employing the plaintiffs instruct them to sell the property for cash. The verdict of the jury in favor of plaintiffs is binding upon us as to all facts necessarily found by the jury in order to reach the verdict, and to prove which there was sufficient evidence. As to what instructions the defendant gave as to the terms on which the property should be sold the defendant and plaintiff Abbott disagreed. Abbott testified that the defendant named only the price, four thousand dollars; the defendant testified that he in addition to the price designated the manner of payment to be cash. There was, therefore, sufficient evidence to support the finding of the jury in this respect, and we are bound by it.
This case is, then, to be 'treated by us as if the defendant instructed Abbott to sell the property for
II.
As to the second defence mentioned in defendant’s brief, the abandonment by plaintiffs of the contract to sell the property, there was no mention in any of the instructions asked by the defendant.
Without holding that, in this case, such fact would excuse the failure of the plaintiffs’ instruction to notice said defence, if that failure were otherwise erroneous, we hold that under the evidence in this case it was not erroneous. In our opinion there was no evidence tending to prove that the plaintiffs abandoned the contract. W e have set out in the statement of facts all the evidence bearing on this question. It shows, we think, that so far from abandoning their contract the plaintiffs, up to a few hours before the consummation of the sale through their Mr. Abbott, interested themselves in the pending sale of the property; and that if the final visit
III.
The defendant’s counsel contend that it was the duty of the plaintiffs under their contract to make an actual sale of the defendant’s property, and that by procuring a proposing purchaser who negotiated and completed a purchase of the property on the terms named by the defendant they did not comply with their contract. This contention is not well made. The plaintiffs were employed simply as real estate brokers. There was nothing peculiar in the contract employing them. As brokers they were to procure a purchaser on the defendant’s terms and bring the two together. They did not have to negotiate the trade; they did not have to make the actual sale. Keys v. Johnson, 68 Pa. St. 43; Tyler v. Parr, 52 Mo. 249; Woods v. Stephens, 46 Mo. 555; Timberman v. Craddock, 70 Mo. 638; Bell v. Kaiser, 50 Mo. 150; Goffe v. Gibson, 18 Mo. App. 1; Gaty v. Sack, 19 Mo. App. 477.
IY.
The fact that the defendant did not know, at the time of making the sale to Shumaker, that the latter had been procured by the plaintiffs is immaterial. The right to a recovery by the plaintiffs depended upon the fact that they had procured the purchaser, and not upon the knowledge on the part of the defendant of that fact at the time of the sale. Tyler v. Parr, 52 Mo. 250; Goffe v. Gibson, 18 Mo. App. 4.
Y.
We have omitted the consideration of an objection made to the instruction given for the plaintiffs, and we
VI.
( In the light of the facts of this case, then, which are"fixed by the verdict of the jury, and as to which there was no conflict of evidence, the case may be thus stated: The defendant employed the plaintiffs to sell his property at the price of four thousand dollars, on such
Such being the case, in our opinion, the plaintiffs were entitled to recover, and the judgment was for the right party. The defendant was furnished by plaintiffs with a purchaser on terms agreeable to himself ; and the brokers earn their commission.
Judgment affirmed.