Ramsey v. West

31 Mo. App. 676 | Mo. Ct. App. | 1888

Lead Opinion

Hall, J.

This suit was brought to recover five hundred dollars as broker’s commission for selling the defendant’s land to one Samuel Schaeffer, for twenty thousand dollars. The evidence tended to show that, through the aid of plaintiff, acting as a broker for the defendant, under employment by the latter, the defendant entered into the following agreement with. Schaeffer:

“This agreement, made this twenty-fifth day of July, 1882, between John S. West, of Kaw township, Jackson county, Missouri, of the first part, and S. C. Schaeffer, of Lancaster, Ohio, of the second part, witnesseth: That in consideration of the. .sum of twenty thousand dollars, to be paid as hereinafter specified, the receipt of five dollars of which is hereby acknowledged, the said John S. West has, this day, sold in fee-simple to the said S. O. Schaeffer, the following’ described premises, situate in Kaw township, Jackson county, Missouri, containing seventy-nine acres, less the right of way granted to the Chicago and Alton Railroad and the Kansas City and Suburban Railroad, both not exceeding ten acres, being what is known as lot number four in the proceeding of the circuit court, of Jackson county, Missouri, for the partition of the estate of Thomas West, deceased, amongst his heirs and widow, dated October 18, 1880. For á more definite description of said premises, reference is made to aforesaid partition proceedings ; and the said S. C. Schaeffer for himself and assigns agrees, subject to the condition hereinafter named, to pay the said sum of twenty thousand dollars, as follows: Five thousand dollars on or before the first day of February, 1883, and the balance in three annual payments of five thousand dollars each, with six per cent, interest from the first day of February, 1883. Upon receipt of the first payment of five thousand dollars the said John S. West for himself or his heirs and assigns, agrees to execute and deliver to the said S. C. Schaeffer or his assigns a deed of general warranty for said premises as above specified with abstract of title for the lands and premises above named, to be satisfactory to said Schaeffer or his assigns, and at same time the said Schaeffer, or his assigns, shall execute and deliver to the said John S. West bond or notes for the deferred payments, to be secured by mortgage on the premises so conveyed.

“It is understood if the said Schaeffer or his assigns shall neglect or fail to pay or make tender of the first payment of five thousand dollars on or before the time stipulated, then this agreement to be wholly void and shall cease to be binding on either of the parties hereto.

“JohnS. West. [seal.]

“ S. C. Schaeffer, [seal.]

“Attest: H. C. Ramsey.”

The plaintiff was employed by the defendant to procure a purchaser for his real estate at the sum of twenty thousand dollars. The court tried the case on the theory that the plaintiff by engotiating the contract set out above performed bis contract with defendant. The question is thus presented, was that contract such a contract as the plaintiff was employed to negotiate ? The plaintiff contracted to procure one able, ready, and willing to purchase the defendant’s land at the sum named. The question may, therefore, be thus stated) was the contract entered into between the defendant and Schaeffer- binding upon the latter to purchase the land at the sum of twenty thousand dollars ? The question must be answered in the negative.

The condition of the contract with which it concludes in express words is made for the benefit of both the parties thereto. While the principle invoked by the plaintiff’s counsel, “it is a far-reaching principle of common law that a party shall not be allowed to take advantage of his own wrong, a nd courts will not so construe the contract as to enable” the party committing the wrong to take advantage of it, is a sound principle and firmly established, it has , no application to a contract whose language gives no reason for construction, and is susceptible of only one meaning, and that meaning is that the party failing to comply with one of the terms of the contract may, as well as the other party, on the happening of the failure elect to put an end to the contract. Because, although the principle of construction should be given full force, it cannot authorize .the court to make a new and distinct and different contract for the parties. The contract in this case clearly provides that Schaeffer, upon failing to pay or tender the first payment provided foi; thereby, might elect to treat the contract as at an end, for the words are, “then this agreement to be wholly void, and shall cease to be binding on either of the parties hereto.'1'1 On no ground can we refuse to give the force, effect, and meaning to these words which they ■ plainly intend. In this case Schaeffer failed to make the first payment called for in the contract, and after-wards refused to carry out the contract and complete the purchase uuder it.

For this reason the judgment must be reversed unless it be for the point made by counsel' for the plaintiff that the defendant, by accepting and approving the contract in evidence, must be presumed to have accepted it as such a contract as the plaintiff agreed to negotiate, and, therefore, as performance by plaintiff of his duty. This point, for the reason given by us in Reiger v. Bigger, 29 Mo. App. 421, we must hold as untenable.

Judgment reversed and cause remanded.

All concur.

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Rehearing

On rehearing.

Hall, J.

We adhere to the original opinion in this case.

In support of our conclusion that the contract referred to in the opinion is an optional contract, we cite Bradford v. Limpus, 10 Iowa, 35. We wish, also, to say that a careful reexamination of the authorities cited by the counsel of plaintiff shows that they do not apply to this contract, the peculiar language of which we sufficiently noticed in the original opinion. If the words used in the contract do not convey the meaning given them by us, it would be difficult to conceive words that would do so.

We desire to add something to what was said in that opinion as to the theory on which the court tried the case. The fact is, that, after the making of the contract set out in the foregoing opinion, the defendant made a sale of his property to Schaeffer. The sale was made about one and a half years after the making of the contract. In the meantime, Schaeffer having refused to purchase the land, the defendant had instituted a suit against him for damages on account of such refusal, which he had dismissed before trial, and had instituted a second suit on the same ground, which was at the time of the sale undisposed of; and Schaeffer had instituted a suit against the defendant on the attachment bond given in the first suit, an attachment having been issued in that suit, and also on account of the contract between the defendant and himself. Schaeffer’s suit was also pending at the time of the final sale, and it and the last suit brought by defendant were both dismissed after the final sale of the land. There was no evidence that the final sale and the dismissal of the two suits were the result of a settlement of the parties. On the contrary, all the express evidence on the subject was to the effect that Schaeffer denied emphatically the binding effect of the contract procured by the plaintiff, and refused, in any manner, to recognize it as of any force. Between the making of the contract and the final sale of the land, so far as the record discloses, the plaintiff did nothing to procure a sale of the land.

On such facts, the court gave the following instruction for the plaintiff:

“The court instructs the jury that if you believe, from the evidence, that the defendant employed the' plaintiff to procure for him a purchaser of the real estate described in the evidence at and for the sum of twenty thousand dollars, and that plaintiff did procure a purchaser of such real estate at and for the said sum, or a greater sum, and that plaintiff was to recéive the usual and ordinary commission for finding such purchaser on the purchase price paid for said real estate, then you will find for' the plaintiff so much as you find to be the usual and ordinary commission on the purchase price of the real estate aforesaid.”

We thought, and still think, that this instruction does not refer to the final sale of the land, but that it refers to the contract between the defendant and Schaeffer, which was procured by the plaintiff. It was in accordance with this understanding of the meaning of this instruction that we said that the court tried the case on the theory that, by procuring the contract mentioned, the plaintiff performed his contract with the defendant.

But if we are wrong in this view of this instruction, and if the instruction does not refer to the final sale of the land, we think the instruction defective - and misleading in not plainly telling the jury that in order to find for plaintiff they had to find that the contract was the inducing or procuring cause of the sale finally made. There was no evidence of anything done by the plaintiff to procure that sale , but the procurement by him of that contract. Under such evidence, if the jury understood the instruction to refer to the final sale, they must have also understood that, because the plaintiff procured the contract, and the sale, in point of time, was subsequent to the contract, they might find that the plaintiff procured the sale. This is not the law. The broker must be the procuring cause of the contract on which he depends for his recovery. It will not suffice for his act to be one of the chain of causes producing the contract; it must be the procuring or inducing cause, or, as it has been said, it must be the causa causans. Ewell’s Evans on Agency, 341.

For this reason, with the concurrence of the other judges, the judgment is reversed and the cause remanded.