Sallee v. McMurry

113 Mo. App. 253 | Mo. Ct. App. | 1905

NOETONI, J.

(after stating the facts). — It is the law that a real estate broker earns his commission when he produces and introduces to his principal, a buyer who is able, ready and willing to buy, upon the terms at which the broker is authorized to sell. [Brown v. Smith, 113 Mo. App. 59; Goodson v. Embleton, 106 Mo. App. 77, 80 S. W. 22; Finch v. Trust Co., 92 Mo. App. 263; Finley v. Dyer, 79 Mo. App. 604; Hugging v. Hearne, 74 Mo. App. 86; Ghipey v. Leathe, 60 Mo. App. 15; Hayden v. Grillo; 45 Mo. App. 1; s. c., 35 Mo. App. 647; s. c., 26 Mo. App. 289; Gelatt v. Ridge, 117 Mo. 553, 23 S. W. 882.] And in cases where the principal refused to sell up op the broker having produced and introduced to him a buyer who is ready, able and willing to purchase upon the terms proposed, the law regards the sale as made in' so far as the agent and his commissions are concerned, upon the theory that the law does not require that to be done by the agent which is either unreasonable or impossible. But having produced a qualified buyer, he has fully performed on his part, as it is not within his power to force the proprietor to convey the land, and in such case, the law declares the commissions earned and the sale made on the part of the broker. [Brown v. Smith, 113 Mo. App. 59; Goodson v. Embleton, 106 Mo. App. 77, 80 S. W. 22; Real Estate Co. v. Ruhlman, 68 Mo. App. 503; Wright & Orison v. Brown, 68 Mo. App. 577; Reeves v. Vette, 62 Mo. App. 440; Hart v. Hopson, 52 Mo. App. 177; Stinde v. Blesch, 42 Mo. App. 578; Hayden v. Grillo, 42 Mo. App. 1; Harwood v. Diemer, 41 Mo. App. 48; Gelatt v. Ridge, 117 Mo. 553, 23 S. W. 882.]

It is also Avell settled that the agent is entitled to his commissions if he is the procuring cause of the negotiations AAdiich resulted in the sale, even though the agent does nothing more than bring the parties together for the purpose of negotiating and the negotiations are afterAvards conducted and concluded by the principal in person. [Gelatt v. Ridge, 117 Mo. 553; Timberman v. Craddock, 70 Mo. 638; Tyler v. Parr, 52 Mo. 249; Bell v. Kaiser, 50 Mo. 150; Wright & Orison v. Brown, 68 Mo. App. 577; Brennan v. Roach, 47 Mo. App. 290.]

In the case at bar, the contract of employment contained nothing as to the terms upon which the sale was to be made by Sallee and, of course, in the absence of such stipulation, the law would presume the terms to be cash. But be this as it may, the principal can fix the terms to suit himself upon meeting the purchaser produced by the broker and can even vary the terms if he sees fit, that were originally provided between himself and the broker, and upon doing so, would be obligated to pay the broker commissions upon his failure thereafter to carry out the contract in accordance with the terms agreed upon between himself and the prospective buyer. [Wright & Orison v. Brown, 68 Mo. App. 577; Brennan v. Roach, 47 Mo. App. 290; Jones v. Berry, 37 Mo. App. 125; Goff v. Gibson, 18 Mo. App. 1.]

In the case at bar, the brokers produced the purchaser and he and the respondent agreed upon the terms of purchase, upon which Jamison could have the farm at any time before the 4th day of July, provided respondent did not sell it to other parties. Jamison returned in due time and offered to take the place in accordance with the terms theretofore agreed upon and the sale was defeated by no other cause than the flat refusal of the defendant to convey. Upon this state of facts, appellants would be entitled to recover their commissions if the jury find that they were employed as they alleged, and of which employment there seems but little or no doubt, unless the agency had been terminated before respondent’s refusal to consummate the same. If appellants were employed as agents or brokers for the sale of the land, as it seems almost beyond controversy they were, then the employment would continue for a reasonable time at least, or until revoked. In a contract of employment to sell real estate, the broker is universally entitled, in the absence of the revocation of his authority, or a time limit to his employment, to a reasonable time in which to find a purchaser. [Henderson v. Vicent, 84 Ala. 99-100; Biddison v. Johnson, 50 Ill. App. 173; Lane v. Albright, 49 Ind. 275; Stedman v. Richardson, 100 Ky. 79; Carroll v. Petit, 67 Hun. 418; Sibbald v. Iron Co., 83 N. Y. 384; Leslie v. Boyd, 124 Ind. 320; 9 Cyclopedia Law & Proced., 613; 1 Am. & Eng. Ency. Law (2 Ed.), 1220.] “In deciding whether an undertaking has been performed within reasonable time, the material difficulties and hazards attending it and the amount of diligence used and frustrated attempts at performance should be considered, . . . and that it is a question of fact for the jury when it depends upon facts extrinsic to the contract and which are matters in dispute.” [9 Cyclopedia Law & Proced., 613.]

In determining what would be a reasonable time for complying with a contract of this kind, it must be kept in mind that farms are slow in selling. Purchasers are not found every day and that the facts and circumstances surrounding the transaction usually are such that some little time is required in which to find a buyer and then work up a sale. In short, the facts and circumstances of each case should be considered in determining what is a reasonable time therein. [Howe v. Bristow, 65 Mo. App. 624.] At any rate, it is in evidence in this case and it seems beyond' dispute, as both parties testified substantially the same about the conversation on the evening before’ the broker, drove the purchaser to respondent’s farm, Sallee called the attention of respondent to the conversation about the sale of the farm which he had had the fall before. Defendant said he remembered it and upon being told that he would bring some land buyers out the next day, said he would be at home, all of which tends to show that the contract in this case was then being acted upon by both parties, and on the following day on defendant’s farm,when Sal-lee related the conversation of the fall before to respondent, he did not’ repudiate any part of it. All of the conversation tends to show that if a contract existed at all, they were then acting upon it. If the contract of agency existed, there is no doubt but what the respondent had the right to terminate it, as where no time for the continuance of a contract of this kind is fixed, either party is at liberty to terminate it at will, subject only to the requirements of good faith and reasonable notice. [Sibbald v. Iron Works, 88 N. Y. 378; Jones v. Berry, 37 Mo. App. 125; Gaty v. Sack, 19 Mo. App. 470.]

The law is well settled, however, by numerous adjudicated cases that the principal will not be permitted to terminate the agency without cause in the very midst of negotiations which the agent has brought about by the expenditure of time, labor or money to which he . has been encouraged and moved by the principal. The principal is no more permitted to terminate the agency in the midst of negotiations and thus defeat the agent’s compensation by refusing to convey, upon the ground that he has terminated the agency, while the negotiations were pendingypnder like circumstances and defeat the agent’s compensation when he takes the negotiations out of the agent’s hands and completes the sale on his own account. The policy of the law is the same in either case; to protect the agent and see that he is compensated for the services he has rendered. It would be highly unjust, indeed, to permit the employment of agents and their encouragement to work and expend money and time in the service of their principals and | then permit the principals to defeat them of their ex-j pected compensation by terminating the agency when I the purchaser was, himself, almost ready to close the bargain. 1 Amer. & Eng. Ency. Law (2 Ed.), 1217, says: “Of course, if the authority has been executed, it cannot then be revoked.” And again, at page 1217,. 1 says: “The agent cannot be deprived of the fruits of his labors; and when a sale is virtually effected by a duly authorized agent, if the principal takes the matter" in their last stages, than he is permitted to terminate the agency into Ms own hands, he is still liable for the commission to his agent, since the latter is the procuring cause.” [Knox v. Parker, 2 Wash. 34; Sibbald v. Iron Co., 83 N. Y. 378; Green v. Cole, 103 Mo. 70, 15 S. W. 317; Glover v. Henderson, 120 Mo. 367, 25 S. W. 175; Blumenthal v. Goodall, 89 Calif. 251; Livezy v. Miller, 61 Md. 336.] In the case last cited, the Supreme Court of Maryland said: “It is also the established law that after negotiations begun through a broker’s intervention, having virtually culminated in a sale, the agent cannot be discharged so as to deprive him of his commissions. If the agent is the procuring cause of the sale made, he will be awarded his commissions.” In Knox v. Parker, 2 Wash. l. c. 37, the court said: “And if, at the time of the revocation, the agent should have a pending treaty with a proposing purchaser, who afterwards, by a continuance of the same negotiations with the principal himself, actually buys the property, the agent would have fully earned Ms commission, since the principal in such transaction cannot arbitrarily cut oft the agent’s authority, in the midst of what would be a successful agency, and then, although himself taking advantage of the agent’s services refuse him compensation.” The Supreme Court of New York said: “Thus, if in the midst of negotiations instituted by the broker, and which were plainly and evidently approaching success, the seller should revoke the authority of the broker, with a view of concluding the bargain without his aid, and avoiding the payment of commissions about to be earned, it might well be said that the due performance of his obligation by the broker was purposely prevented by the principal.” [Sibbald v. Iron Co., 83 N. Y. l. c. 384.]

It seems clear to us that the mere fact that the prospective buyer, 'Jamison, said in the- conversation at the woodpile, that he did not want defendant’s farm without that of his brother, and that defendant replied to him that, “This ends the matter then between you and me,” cannot operate to terminate the agency of the plaintiffs in this case even though it was said in their presence and they heard it, as such remarks were evievidently only a part of the negotiations. It is an every day occurrence with a prospective buyer when he fully intends to buy, to say that the article does not suit him, that h,e don’t believe he wants it, etc., and. such statements cannot be treated in cases of this kind as terminating all negotiations. There was nothing said by the respondent to the appellants which tended to terminate their agency, if they had one, and the remark which the defendant says he made, that they could go down on the bottom and look at the land for information but not to buy, certainly would not operate at that time as a termination of the agency nor as a revocation of authority. Plaintiffs had performed their services and were still working to consummate the deal, and the law would not permit the trade to be called off by the defendant at the last moment, and their commissions defeated thereby. Having produced a purchaser to whom respondent had given every assurance of his willingness to sell, they had the undoubted right and it.was their duty to use every effort to induce him to buy, at least as long as he remained upon the premises, even though he had expressed himself as unwilling and upon his finally agreeing to do so, it was respondent’s duty to sell.

The twelfth instruction given on behalf of the respondent, was bad for a second reason. It assumes a fact not in proof and tells the jury that: “He would have no right to return and offer to take defendant’s farm for the mere purpose of collecting commissions off of defendant.” It is palpable that Jamison, the purchaser, could have no commission in the trade. The instruction is therefore suggestive of a conspiracy between the appellants and the purchaser to mulch respondent for commissions of which there was neither evidence nor a fact from which a reasonable inference to that effect could be drawn, in the record. It stands out in the case as an unwarranted imputation of bad faith and conspiracy on the part of appellants and the purchaser. Instructions of this character should be avoided in cases when not warranted by the evidence. [Beauchamp v. Higgins, 20 Mo. App. 514; Johnson v. Kahn, 97 Mo. App. 628, 71 S. W. 725.]

For the reasons given, the judgment is reversed and the cause remanded to be proceeded with in accordance with the views herein expressed.

All concur.