199 P.2d 798 | Kan. | 1948
The opinion of the court was delivered by
This was an action by a real-estate broker to recover a commission. The plaintiff prevailed and the defendant appeals.
In his petition, the plaintiff, R. W. Patee, a resident of Lyons, Kan., alleged that he was a real-estate broker and as such had the residence property of H. R. Welch, in Lyons, listed for sale; that he advertised it for sale and contacted prospective buyers; that on or about June 24, 1947, J. S. Moody, the defendant, called upon him and inquired about the Welch property and was informed about the price and the items included in the property; that on June 26 he exhibited the Welch property to the defendant and on the same date exhibited to Welch a residence property belonging to Moody; that on June 28 the defendant agreed to buy the Welch property and Welch agreed to sell and an' agreement was drawn under which the defendant was to buy the Welch property and lease his property to Welch, but the agreement was not executed by the defendant; that on the evening of June 28 the defendant called the plaintiff and stated that he desired to sell his property to Welch and plaintiff said he would get in contact with Welch and that if a sale was consummated defendant would pay a five percent commission; that plaintiff did get in touch with Welch, and defendant’s property was included in the purchase price of the Welch property for $7,750. Plaintiff asked judgment for $387.50.
In his answer defendant denied generally the allegations of the petition and specifically denied that he had employed the plaintiff as an agent for any purpose, that he had employed him to sell any property, or that he agreed to pay any commission for sale or trade of property as alleged. The reply was a general denial.
The case was tried by a jury and at the close of plaintiff’s evidence the defendant demurred to the evidence on the ground that no cause of action had been shown. The demurrer was overruled, and defendant’s evidence was received.
At the conclusion of the closing argument to the jury by counsel for the plaintiff, the defendant moved that the case be withdrawn
The jury returned a verdict for the plaintiff in the amount asked and answered special questions as follows:
“1. Did the defendant, J. S. Moody, employ tlie plaintiff, R. W. Patee, to sell or exchange his (Moody’s) house? A. Yes.
“2. If you answer the foregoing question in the affirmative, then state when and where the defendant Moody employed the plaintiff Patee? A. Where — Lyons, Kans. When— When Mr. Moody gave Mr. Patee permission to contact & make an appointment with Mr. Welch. Both parties understanding a trade was involved.
“3. If you have found that the defendant Moody employed the plaintiff Patee to sell or exchange his house, then state the amount of the price for which Patee was to sell or exchange the house belonging to Moody? A. $7,750.00.
“4. Was the exchange of the house owned by the defendant Moody brought about by the efforts of the plaintiff, Patee, acting as the agent of the defendant Moody? A. Yes.
“5. If you answer the last question in the affirmative, then state what the plaintiff Patee did to bring about the exchange of the house owned by Moody in this transaction. A. The plaintiff Mr. Patee was' instrumental in bringing the two parties together, which resulted in a completion of the negotiations.”
Motions of the defendant .to set aside the answers, for judgment, and for a new trial, were overruled and this appeal followed.
Examination of the record, which is comparatively short, makes it clear that if the plaintiff’s evidence be held sufficient to establish a contract of employment by the defendant and to support a finding that the efforts of the plaintiff were the procuring cause of the consummated deal, such conclusion must rest entirely upon the testimony as to one telephone conversation, to which reference will presently be made. Prior to that there was nothing which in any
Following that, Patee had conversations with Moody relative to renting his house to Welch and Welch agreed to pay $50 monthly rental for the Moody place. An attorney was employed to draw up an agreement for sale of the Welch property and lease of the Moody property. On a Saturday evening Patee called Moody to tell him the agreement had been drawn up and he would like to have him sign it. Patee had made it known that he planned to leave the next morning on a trip to Wyoming to be gone for some time. Moody was not at home when Patee called, but called Patee later that evening and said he had been thinking it over and had decided he didn’t want to enter into the proposed agreement to lease his place for a year with privilege of renewal, because that would tie him up so he couldn’t sell his place if he wanted to do so. Then followed the testimony upon which appellee relies, as follows: (Testimony of R. W. Patee)
“. . . he proceeded to ask me if Mr. Welch would consider taking it in on a trade. I said, ‘Yes, he would; he had already offered you $7,500.00.’ Then Mr. Moody wanted to know if he could talk to Mr. Welch about a trade. I says, ‘Well, I am leaving in the morning and will call Mr. Welch and find out if he would care to talk to him.’ I said, ‘Jim, if you trade your house in, you are going to have to pay part of the commission, because Mr. Welch will not trade any other way and pay a full commission on your house.’ And he says, ‘How much is the commission?’ I said, ‘Well, if he takes the house in on a trade at $7500.00 it would be almost half the commis*202 sion or whatever it figures at five per cent.’ Mr. Moody didn’t say anything for a few minutes and I assumed he was thinking about it. He said, ‘Well, go ahead, and see if I can see Mr. Welch.’ So I called Mr. Welch and told him Mr. Moody didn’t want to buy his house for cash, but wanted to trade, and would he consider a trade. He said, ‘Yes,’ he.would consider a trade at his figure of $7500.00. I said, ‘Well, Mr. Moody wants to talk to you, and I am going to have to leave in the morning, and is it all right for him to come over and see you?’ He said, ‘Yes, it is all right, if he comes over here tomorrow morning before noon, because I am going to the ball game.’ And he says, ‘Does he understand about the commission?’ And I says, ‘Yes, I just finished talking and telling him about it.’ He says, ‘Well, okay, then, you go ahead and whatever we work out, we can finish up when you come back.’ And when I talked to Mr. Moody before on the telephone, he had mentioned that, too, that the deal could be completed if they could arrive at some terms, when I returned from Wyoming. That is all the conversation I' had with Mr. Moody and Mr. Welch before going to Wyoming.”
The above telephone conversations took place on a Saturday evening. The next morning Patee went to Wyoming, and when he got back some weeks later, Moody and Welch had agreed on a trade, the Moody place being figured at $7,750 instead of $7,500 and Welch receiving $7,750 in cash, upon, which amount he paid Patee a five percent commission. Exchange of occupancy had taken place before Patee got back.
Patee testified that after he- got back he asked Moody for his commission and Moody said the amount asked was too much, but agreed io think it over. In considering the issue presented by the demurrer, we are of course not concerned with Moody’s version of the conversations or transactions had with Patee except to say that the defendant’s evidence did not supply any insufficiency that may have existed in plaintiff’s evidence.
In the very recent case of DeYoung v. Reiling, 165 Kan. 721, 199 P. 2d 492, we had occasion to consider again some of the questions relating to a real-estate broker’s right to a commission. Whether a broker has been employed as an agent to effect a sale or trade of property for his principal and whether he was the procuring cause of a consummated deal is ordinarily a question for the trier of the facts, to be determined in the light of all the facts and circumstances up to and including the final negotiations between the seller and purchaser (see many authorities in the opinion in the above case).
The primary relation,' as between customer and a real-estate broker, is that of agency, and the general rules of law applicable to principal and agent govern their rights and liabilities (12 C. J. S.
Construed most favorably to the plaintiff, as must be done in testing the sufficiency of his evidence as against demurrer, can it be said that there was substantial evidence to establish a binding contract of employment of the plaintiff as an agent of the defendant, and that the plaintiff was the procuring cause of the deal consummated between the defendant and Welch? In considering that question we must consider the evidence as a whole and not simply upon some part lifted out of context.
There is no evidence and no contention that prior to the Saturday-night telephone conversation Moody had listed his property with Patee or had in any way made Patee his agent. All negotiations by Patee had been exclusively as the agent of Welch. Patee had advertised the Welch property and as a result Moody went to- see Patee about buying the Welch property. All conversations about the Moody property related to the question whether Welch would consider taking it in as part of the deal for disposing of his property. Welch had objected to paying a commission to Patee on the full amount of the deal in case he took the Moody property as part payment. This was a matter entirely between Welch and Patee. On the Saturday evening Moody called Patee to ask him if Welch would consider taking the Moody property in on a trade. Patee— speaking as an agent of Welch — replied that he would and had already offered to take it in at $7,500. Moody wanted to know if he could talk to Welch about a trade. Patee replied that he was leaving in the morning and would call Welch and find out if he would care to talk to him. We think it clear that in finding out whether Welch would care to talk to Moody, Patee was still acting as the agent of Welch. Then Patee told Moody that if they made a trade Welch would not pay the full commission and that Moody would have to pay part of it. Moody inquired and was advised as to the amount of the commission. Moody replied “go ahead and
Whatever conversation Patee had with his principal Welch about Moody paying part of the commission could not be binding upon Moody. Nor can the subsequent conversation with Moody, to which Patee testified, in his effort to get Moody to pay a commission, be said to establish the prior making of a contract.
We conclude that plaintiff’s evidence was insufficient to establish his cause of action and that the demurrer thereto should have been sustained. This conclusion makes it unnecessary to consider appellant’s other contentions.
The judgment is reversed with directions to sustain defendant’s demurrer to plaintiff’s evidence.