133 Mo. App. 723 | Mo. Ct. App. | 1908
Lead Opinion
This suit is to recover commission for the alleged employment by defendant of the plaintiff to sell or exchange certain lots of ground belonging to him in Kansas City, Misouri, for other real estate. The date of the alleged employment was on or about April, 1904. It Avas shoAvn that plaintiff for awhile after said date endeavored to find either a purchaser for defendant’s lots or for exchange for the same but without success. In June, 1904, plaintiff learned of a farm in Wyandotte county, Kansas, which the defendant finally accepted in exchange for his said lots. Plaintiff called defendant’s attention to the farm and asked him. Avhether he would trade his lots for said farm, to which defendant answered that he would, if the terms were satisfactory, and at the same time he gave to plaintiff a description of his lots and their estimated value. Within a short time plaintiff saw defendant and gave him a description of the Wyandotte county farm, the
About June, 1904, one George W. Mickle a real estate agent, made a proposition to defendant for an exchange of the Wyandotte county farm for the defendant’s lots. The farm was owned by one A. B. Havens. The exchange of lots for the farm was consummated in June, 1905, at which time Mickle, changed the terms of his former offer which defendant, after inspecting the farm in company with him, accepted and the exchange was agreed upon.
It was shown that Mickle was the agent of the owner of the farm who had transferred it to his two children during the period of the negotiations, and received from him, or them, a commission for making the exchange. There was evidence that after Mickle became known in the transaction he conferred with plaintiff as defendant’s agent in regard to the exchange of the properties and that it was through the efforts of plaintiff that Mickle’s attention was called to the fact that defendant wanted to exchange his lots for the farm. This latter information was conveyed to Mickle by Havens the owner of the farm, who knew, as a matter of course, of plaintiff’s efforts in the first instance to make the exchange. It was also shown that before he would make the exchange defendant sent word to plaintiff that he would not pay him any commission, but, plaintiff denies that he received word. Plaintiff sent word to defendant, if the e-xchange was made he would charge him with commission; but defendant claimed that the exchange had been made when he received such word. The finding and judgment were for plaintiff; and defendant appealed.
Another contention of defendant is that plaintiff was not entitled to recover because his authority as agent was not evidenced by writing as required by the statute governing such agencies, in cities of over three hundred thousand inhabitants. The defendant does not claim that Kansas City has a population of over three hundred thousand inhabitants, but his proposition is that plaintiff did not prove that it did not have that number. He was not required to make such proof, as the court was bound to take judicial cognizance of the last census which shows that the city has less than the number mentioned.
The defendant has cited fifteen Missouri cases to the effect, that, a real estate broker, before he is entitled to his commission for a sale or exchange of property, it is necessary that his acts must be the procuring or inducing cause, and that it will not suffice for his act to be merely one of the chain of causes producing the contract. To all this we assent. But as before stated there was evidence upon which plaintiff could recover under the rule so well established by the authorities mentioned.
Finding no error the cause is affirmed.
Rehearing
ON REHEARING
In the foregoing opinion, we 'omitted reference to the objection to plaintiff’s first instruction duly presented in the record and discussed in the
“The court instructs the jury that if they find from the evidence in this case that plaintiff on or about April, 1904, and thereafter, was engaged in business in Kansas City, Missouri, as a real estate broker, and that defendant, about said date, at the solicitation of the plaintiff, placed his residence on Park avenue referred to in the evidence, in plaintiff’s hands for sale or exchange for other property and employed plaintiff to sell said property or procure an exchange therefor, of other property satisfactory to defendant, and that by reason of said placing of said property in plaintiff’s hands and his employment to sell or exchange same, the plaintiff presented the said property of defendant to one A. B. Havens to exchange same for a farm in Wyandotte county, Kansas, either belonging to or controlled by said Havens and presented same to the defendant and brought said Havens and defendant together and negotiated with other parties and with said Havens for defendant from time to time during 1904 and 1905, up- to a short time before said trade was consummated in the effort to exchange defendant’s property in Kansas City, Missouri, for said farm, and that thereafter about September, 1905, defendant made said exchange of his property for said farm with said Havens, then your verdict must be for plaintiff,” etc.
The main ground of the objection is that the instruction failed to submit to the jury as one of fact, the question of whether the efforts of plaintiff were the procuring cause of the sale. The pleadings and evidence make that question of vital importance, and the instructions of plaintiff should have included it in their hypothesis. All of the facts submitted in the instruction quoted might be resolved in favor of the contention of plaintiff and still it might be true that his efforts as the agent of defendant were not the procuring cause of the sale. What we said in Mead v. Arnold,
The instruction is fatally defective, and we do not find the error cured in the following instruction given at the instance of defendant: “The.jury is instructed that before a judgment can be rendered for the plaintiff in this case, said plaintiff must establish by a fair preponderance of the credible testimony that the defendant employed this plaintiff to sell or exchange his property; and that through the exertions, skill and services of the plaintiff, one A. B. Havens was induced to exchange certain property for the property of this defendant.”
That instruction declared the true rule, but instead of curing the defect in plaintiff’s instruction, the two are contradictory, and we must assume the jury adopted that given for plaintiff and rejected the other. In effect, the plaintiff’s instruction told the jury to find for plaintiff if they believed he was employed by defendant and introduced a customer to defendant to whom a sale was afterwards made, though they might believe these acts of plaintiff were not related to the sale as ■ the causa causans thereof, while defendant’s instruction declared that they must have been thus related. The rule is well settled that proper instructions given at the request of the party afterward defeated by the. jury do not remedy material error in antagonistic instructions given at the request of his successful opponent. The error was prejudicial and compels us to reverse the judgment and-remand the cause for a new trial. It is so ordered.
