146 Mo. App. 171 | Mo. Ct. App. | 1909
(after stating the facts). — If defendant had accepted the offer of Mrs. Freasier as made, he would have received only $87.50 net over the $16,000, and by accepting the contract and making the sale to Mrs. Freasier, he would have rendered himself liable to the plaintiff for five hundred dollars, if it was true that through plaintiff’s presentation of the property to her, Mrs. Freasier had been induced to, or was ready, willing and able to buy, so that out of the $16,500 nom
Furthermore, instructions 1 and 2 are inconsistent and confusing. By the first one the jury were told that the amount plaintiff was entitled to recover was the difference between the sum of $16,000 and the sum of $16,500, whereas by the second, they were told that if plaintiff recovered he was entitled to recover the difference between $16,000, “and the sum which you may believe and find from the evidence the purchaser secured by plaintiff, if any, was willing to pay for the flats belonging to the defendant, as described in evidence.” If Mrs. Freasier was only willing to pay defendant $16,500, less the commission of two and one-half per cent to Harkrader, her net offer to defendant would bé only $16,087.50, and that would entitle plaintiff to only $87.50. This instruction was in conflict with the first instruction, which fixed his right of recovery at $500.
The first instruction is further defective, however, and fatally so, in that it omits from that instruction the very essential requirement that the proposed purchaser was willing to purchase the property on the terms given the agent by his principal. When defendant attempted to correct this by his instruction No. 3, those parts which would have corrected it were stripken out. Instruction No. 3, given at the instance of defendant, as asked, embodied that as a condition to recovery, that the jury could not find for plaintiff, “unless you shall further find from the evidence that he, plaintiff, was the procuring cause of said offer to purchase said property by Mrs. Freasier, and that the terms and conditions of said ofer was the same, and the price to be paid to defendant, including commission on said sale, was the price at which plaintiff was authorized to sell the same by defendant. And if you- shall -find from all the evidence that said offer imposed new or different conditions, and imposed or carried with it a requirement to
In Brown v. Smith, 113 Mo. App. 59, Judge Noutoni, at page 68, announces the rule as well settled by the authorities, to be that, “A real estate broker earns his commission when he finds and produces to the seller a buyer for the land who is ready, able and willing to buy upon the terms upon which the broker is authorized to negotiate the sale.” He cites many authorities in support of this rule and follows it with the declaration that in such cases, that is, when the broker has performed these acts, the-law regards the sale as complete in so far as the agent and his services are concerned and that being so, he is entitled to his commission. It is just as essential that the proposed purchaser is willing to take on the conditions of the proposed vendor, as those terms are prescribed to the agent when the sale of the property was committed to him, as it is that he shall be ready, willing and able to take and pay for the property at all. This same rule is announced by the Supreme Court in Morgan v. Keller, 194 Mo. 663, where many authorities are compiled and commented upon. In omitting to include any distinct reference to this rule in the first instruction given and in striking it out from instruction No. 3, asked by defendant, the court committed error to the prejudice of the defendant.
The court tried this case ou the theory that it was immaterial whether a sale had been in fact effected or not, provided plaintiff brought forward a customer ready, willing and able to purchase. That is correct, only however, with the added element that that cus
Furthermore, in this proposed contract of sale, it is distinctly set out, “That this sale under aboye terms and conditions is made subject to the approval of the owner of the property,” and as before remarked, there is not a particle of testimony in the case to indicate that the owner of the property ever accepted it, the evidence being directly to the contrary. So that the evidence not only fails to show a purchaser produced ready to purchase on the terms proposed, but shows one who proposed terms defendant was not only not bound to accept, and which he had not only not authorized plaintiff to include, but which defendant refused to accept.
On consideration of all the facts in the case and of the law as applicable to those facts, plaintiff cannot recover. The judgment of the circuit court is reversed.