58 Mo. 589 | Mo. | 1875
delivered the opinion of the court.
From the record it appears that the plaintiffs were real estate agents, and as such they were employed to sell a piece of property for a specific amount. They succeeded in mak
It is not shown that plaintiffs had anything to do with the negotiations which resulted in perfecting the last contract, further than that one of them drew up the written memorandum ; and they make no claim in reference thereto.
Vlien plaintiffs demanded payment of the sum agreed to be paid in the written undertaking, defendant refused to comply, on the ground that the agreement was not carried out, and therefore he was not liable. There was a verdict and judgment for plaintiffs.
The promise in this case was not made directly to the plaintiffs, but it was contained in the written instrument executed between the persons agreeing to sell the land and the defendant, who agreed to purchase. It was an assumpsit on the part of the defendant to pay a certain debt of the sellers of the land to the plaintiff who were their creditors.
It is now the prevailing doctrine, that an action lies on the promises made by a defendant upon a valid consideration to a third person for the benefit of a plaintiff, although the plaintiff was not privy to the consideration. (Myers vs. Lowell, 44 Mo., 228; Rogers vs. Grosnell, 51 Mo., 466.) In the carefully considered case of Lawrence vs. Fox, (20 N. Y., 268) it appeared that one Holly, at the request of the defendant, loaned and advanced to him$300, stating at the time that lie.-' osyod that sum to the plaintiff, for money borrowed of him, and had agreed to pay it to him the next day; that the de-' feudant in consideration thereof, at the time of receiving the-
It is a presumption of law that when a promise is made for the benefit of a third person he accepts it, and to overthrow this presumption a dissent must be shown. But in this case the rule obtains with more than ordinary force. The full .commission due plaintiffs for their services was three hundred dollars. By the agreement entered into between the parties, the vendors of the property were to pay one-luilf, and the defendant the other half. The language is: “It is further agreed that said Gosnell (defendant) is to pay-one hundred and fifty dollars on their commission to Rogers 'and Peck, (plaintiffs) the same being due at this date.” As the plaintiffs were the negotiators of the sale and drew up the instrument of writing acknowledging the indebtedness in
The point.insisted upon, that .the contract of,sale was ex-ecutory between the parties, and that it was finally abandoned and a new one substituted for it can have no influence upon the rights of the plaintiffs. For the agreement and promise of the defendant was to pay plaintiffs the sum of one hundred and fifty dollars then due. The payment did not depend on any future contingency, but it was for past services; Plaintiffs had performed their duties, and the promise was to remunerate them. Nothing was said about any further or future services. It is not shown that plaintiffs had anything to do with the subsequent transaction, when the original contract was modified., One of them, indeed, did draw up the memorandum or agreement, but that was all, and for aught that appears, it was a mere gratuitous labor. There is nothing to connect it with the original service or contract.
The owners of the land were to pay plaintiffs a certain amount, but the defendant in their stead agreed when the bargain was made to pay one-half, and acknowledged at the time that it was due.
Plaintiff’s assent fixed defendant’s liability, and when they collected the amount it operated as a release of the grantors in the sale. There is no question of waiver in the case. There was no evidence on that point.
I think the judgment should be affirmed;