O'Neil v. Printz

115 Mo. App. 215 | Mo. Ct. App. | 1905

GOODE, J.

(after stating the facts). — The burden of the argument addressed to us on this appeal, when properly considered, relates to the weight of the evidence on the several issues of fact. There can be no doubt that the evidence tended to prove Printz found a buyer of the property Avho was willing and able to buy. There was positive testimony to that effect. The fact that Winterer’s son stated that he was opposed to the purchase and glad an opportunity arose to get out of it, had slight, if any tendency to show that Winterer did not recede from the purchase because he would have to wait several months to get a title, but seized on that circumstance as an excuse for evading the contract. Winterer himself said he had no such motive, and beyond doubt the finding of the court on this issue cannot be disturbed.

It is insisted by plaintiff’s counsel that the title to the lot was perfect. A perfect title could not have been passed at the time the contract was made Avith Winterer; that is, in March. Likely it could have been during the summer. However, that hardly would have been within a reasonable time, as the agreement bound Winterer to performance within fifteen days from its date. But waiving this point, we have the fact before us that the plaintiff’s themselves, by their written instrument, consented to declare the sale off and returned the earnest money to the buyer because the title was imperfect. In view of this disposition of the affair there can he no defense to Printz’s claim for a commission, unless he relinquished his claim or was estopped to assert it because he knew the state of the title in advance. No proof was adduced that he relinquished his claim for a commission. On the contrary, he swore he notified the plaintiffs when they ordered the earnest money returned that he was entitled to his commission and they raised no objection to paying it. It is said he was notified of the minor’s interest by the fact that the written authority given him to sell was signed by Peter Gorman as curator of the minor. As to this matter, there' was a direct conflict in the evidence. Printz swore the writing was not at first signed by Peter Gorman as curator, and that he (Printz) had no knowledge that the minor had an interest in the property until after the examiner had passed on the title and given a report stating the fact, when he had the signature of Peter Gorman changed so it should show he had signed as curator. Peter Gorman himself swore to the contrary. With the testimony in this state, a question of fact was presented for the court’s decision.

Plaintiff’s counsel contends he was surprised by the testimony of Printz that he (Printz) had no knowledge of the minor’s interest until after the examiner’s report. This surprise is alleged as ground for a new trial, and the motion is supported by an affidavit of John J. O’Neil that he had told Printz of the minor’s interest two or three months before Printz was made agent. This was no ground for a new trial; at least without there was good cause for not putting O’Neil on the stand to contradict Printz, and no cause was shown.

The judgment is affirmed.

All concur.