181 Mo. App. 498 | Mo. Ct. App. | 1914
This is an action by a real estate broker to recover a commission for the exchange of
The evidence shows that plaintiff, Judge Perry, residing in Shelbyville, Missouri, was engaged in business as a real estate broker at the date of the matter here in controversy, and that the defendants, as co-partners, then owned and conducted a general merchandise store in Shelbyville, defendant James Edelen appearing to be'the principal, party in interest. Plaintiff’s evidence goes to show that about May, 1910', defendant James Edelen stopped plaintiff upon the street and told him that he (Edelen) wanted to trade his stock of goods, stating reasons therefor, and asked if plaintiff had anything that could be traded for the same; that plaintiff told him he had not; and that said defendant thereupon asked plaintiff if the latter would look for something for which he could trade, saying that he was anxious to “trade out, owing to the conditions ; ’,’ that plaintiff thereupon took out of his pocket an advertisement of one T. D. Mitchell & Company, advertising two or three farms for sale or trade, and asked whether these would be considered; that this defendant said he would not consider any farm outside of Shelby county, and further said: “Now remember, I don’t ask you to make any trade for me. What' I ask you to do is to find some one willing to trade. I will make the trade myself, and I will pay you the commission. Remember, I don’t propose to pay any unreasonable commission, but a reasonable commission I will pay; ’ ’ that plaintiff replied that he asked nothing more than a reasonable commission; that defendant asked plaintiff if he would undertake to find him a trade, stipulating, however, that he did not want his business advertised for trade or sale, because it would injure the business, that he had a good business, and that plaintiff could so represent it, but that he did not want people generally to know that it was for trade.
It appears that Mitchell had in charge another farm of two hundred and forty acres in Shelby county, belonging to one Davidson. Plaintiff testified that Mitchell suggested to him that a trade might be made for this land, but that plaintiff thought the land too rough and that it did not contain enough good land to interest Mr. Edelen; that Mitchell-then said that Da
It is undisputed that this trade was actually made. And plaintiff’s testimony is to the effect that after he had told the defendant, James Edelen, about the Davidson farm he was unable to get said defendant to go with him to see the farm, but that the latter put him off, and in the meantime went to see Mitchell, looked over the Davidson farm and consummated the trade. Plaintiff further testified that when he submitted the proposition to defendant, James Edelen, to exchange the
Mitchell, testifying as a witness for plaintiff, fully corroborated plaintiff’s version of what took place between him and plaintiff; and testified that thereafter defendant, James Edelen, got into communication with him, called to see him, and that they together went to see the Davidson farm, and that the trade was ultimately-consummated without taking plaintiff into further consideration.
Defendant, on his part, denied flatly that he had ever given plaintiff any authority to trade his stock of goods or any other property, denied the conversations alleged by plaintiff to have taken place between them, and declared that plaintiff had nothing to do whatsoever with the making of the exchange of his property for the farm in question. He admitted having gone in company with plaintiff to see the farm near Hunnewell, but said that he thought that plaintiff ‘ ‘ was going for Mitchell.”
There is evidence in the record relative to a claim made against defendants by Mitchell for commissions (which it is said was made in behalf of plaintiff), and relative to a former suit brought by plaintiff, which was dismissed; but it is unnecessary to rehearse or consider this' evidence.
It cannot be doubted, we think, that plaintiff’s evidence tended very strongly to show that his efforts were the procuring cause' of the exchange of defendant’s property, making this a question for the jury.
But appellants insist that plaintiff cannot recover, for the reason that it appears that he was, at most, authorized only to exchange the stock of goods, store building and one residence, whereas' the property exchanged by defendants included the foregoing and also another residence; that the exchange actually made varied both in price, or consideration, and in the thing sold; and that therefore there can be no recovery by the agent. And in respect to this, defendants rely greatly upon Tooker v. Duckworth, 107 Mo. App. 231, 80 S. W. 963. But that case is not authority for appellant, under the facts appearing in this record; whatever may have been said in the course of the opinion. There the owner’s contract with the agent was to pay the latter one hundred dollars if he would find a buyer for a stock of goods at the specified price of $2200. There was no performance by the agent, in accordance with the terms of the special contract. The prospective purchaser whom he found would not consider the proposition made to him, and the matter was abandoned. Later the owner consummated a deal with such purchaser, by buying an adjoining lot and selling to him both the stock of goods and the lot.
In the instant case plaintiff’s right to recover is not restricted or limited by any such special contract between the parties. According to plaintiff’s evidence, the contract was in quite general terms, by which plaintiff was authorized and required merely to find some
In this connection appellants also cite: Duncan v. Hills, 155 Mo. App. 702, 135 S. W. 450; Dillard v. Field, 168. Mo. App. 206, 153. S. W. 532; Hurxthal v. Dalbey, 168 Mo. App. 538, 153 S. W. 1066. But an examination of such cases will reveal that they are likewise not authority for appellants under the facts of this case. In fact, in Dillard v. Field, supra, it is well said by Trimble, J., that, “In order to solve the puzzling and somewhat difficult question whether an agent Is entitled to his commission, two questions should be steadily kept in mind: ‘ 1st, what was the agent authorized or employed to do? 2nd, has he completed his undertaking?’ ”
In the case before us the evidence on behalf of plaintiff is to the effect that he was authorized or employed merely to put defendants, or defendant, James
It is also urged that plaintiff’s efforts were in no sense the procuring cause of the sale, but constituted merely a link in the chain of causes and not the •causa causans. But we think that this contention is ■entirely without merit. And a discussion of the cases cited to this point would here serve no useful purpose. The fact is that if plaintiff’s version of the matter be true, his efforts were the procuring cause of the exchange ultimately made by the defendants; plaintiff having, at the request of defendant, James Edelen, found someone willing to exchange for defendants’ property a farm acceptable to them, and having disclosed to defendants the person having charge of such farm and the location of the latter, whereby defendants were enabled to carry the transaction to its ultimate conclusion. If, on the other hand, defendants’
Other questions involved are in effect disposed of' by what we have said above, and need not be separately discussed. An examination of the instructions given and refused has revealed no reversible error. It is not disputed that the amount sued for and recovered by plaintiff, to-wit, $500', is a reasonable broker’s commission in such a transaction.
The judgment should be affirmed. It is so ordered.