91 Mo. App. 647 | Mo. Ct. App. | 1902
— Plaintiffs are real estate brokers and instituted this action to recover a commission from the defendant alleged to be due them for making a sale of his farm, pursuant to a written contract entered into between them and him on the tenth clay of September, 1900. The point made for a reversal of the judgment is that the second amended petition, on which the case was tried, was a departure — that it substituted a new cause of action for the one stated in the original petition. When said amended petition was filed, appellant moved to strike it out for that reason and, his motion being overruled, refused to plead further or participate in the trial, which thereupon proceeded upon the evidence of the respondents, to a judgment in their favor for three hundred dollars, the amount prayed for in the last petition.
The contract by which the respondents were made ap
Had no change been made in the printed form the contract would have read as follows, omitting the description of the property:
“This contract made and entered into this tenth day of September, 1900, by and between Stewart & Jackson of Edina, Knox county, Missouri, parties of the first and John Yan Horne of Knox county, Missouri, party of the second part
“Witnesseth: That the party of the second part has this day placed in the hands of said parties of the first part his farm . . .
“This contract is entered into for the purpose of allowing said parties of the first part to sell said farm and as a consideration for the trouble and service of the said parties of the first part in selling said farm said parties of the first part shall have and receive the sum of three hundred dollars and be allowed to retain the same from the first moneys paid on said sale, and in the event that said parties of the first part
The italicized parts were stricken out before the contract was executed.
The original petition, in addition to praying for the three hundred dollars commission which plaintiffs were to receive if they sold the land for twelve thousand one hundred dollars, alleged that plaintiffs were entitled to one-half of any sum in excess of that- amount for which they sold it, to-wit, one hundred and fifty dollars (they having found a purchaser
The cause of action stated is, that defendant constituted plaintiffs his agents for the sale of his farm by the aforesaid contract for not less than twelve thousand one hundred dollars, and agreed to pay them three hundred dollars for making the sale; that the written agreement was to continue in force until January 1, 1901; but if a negotiation for the sale of the farm had been commenced by the plaintiffs with any purchaser before said date, plaintiffs were to have ten days after said date, to complete such negotiations; that plaintiffs, immediately after the date of the contract, undertook to procure a buyer of the land, and while it was in force, had opened a negotiation with one Elijah Clark of McLean county, Illinois, for a sale at the stipulated price; that while said negotiation was pending under the contract, defendant was notified thereof after said first day of January, and instructed plaintiffs to go on with the transaction; that on the seventeenth day of January, said Clark in pursuance of the negotiation, came to Knox county, Missouri, where the farm'was; plaintiffs notified defendant that they had secured a purchaser for his lands under the original written contract and defendant thereupon extended the time of performance of said contract; - that plaintiffs then took Clark to view the farm, introduced him to the defendant as a purchaser, and Clark and the defendant agreed on a sale of the lands to Clark for twelve thousand four hundred
The evidence fully established the allegations of the petition, showing that plaintiffs found a responsible buyer to whom the defendant agreed to sell and the defendant after-wards refused to carry out his agreement
The point made by the appellant that the proof fails to show a negotiation had been commenced between the respondents and Clark for the sale of the farm prior to the first day of January, and that therefore the contract expired on said day, because the provision that it should continue ten days longer only became effective in case a negotiation had been opened before, is without merit. The testimony is positive that the matter had been placed before Clark prior to the first day of January, and as far back as October. As soon as plaintiffs were made agents to sell the farm, they wrote to their correspondents in Illinois, a firm by the name of Schureman & Young,- directing them to seek purchasers. These correspondents took up the matter with Clark who finally bought the farm, or agreed with defendant to buy it, as stated. Letters passed between plaintiffs and Schureman & Young in December about this matter, in which Clark was alluded to as a possible purchaser, and on the second or third of January, plaintiffs themselves wrote to Clark in regard to it. The result of the correspondence was that Clark agreed to come to Missouri to look at defendant’s farm, as well as others, and did come on the fifteenth day of January. Two days later
As to the point that the second amended petition was a departure, it may be said the gist of the cause of action stated in each petition is exactly the same, to-wit: that defendant is indebted to plaintiffs for a commission for selling his farm pursuant to a written contract by which he had constituted them his agents to sell it. Much has been said on the subject of departure in pleadings (more properly called a substitution of a new cause of action or defense) which is unprofitable and wholly inconsistent with the liberal provisions of the code in regard to amendments. In this and other matters of procedure Legislatures have proven to be more progressive than the courts; although a relaxation of the Procrustean forms, narrow logic and scholastic subtlety of the common law in regard to pleading and practice was as necessary to make judicial proceedings a surer means of determining causes according to their merits, as the transition from mediaeval tenures, regulations and policies was to introduce a broad equality of rights into the law. Justice will too. often miscarry if the old technical rules of procedure are not qualified by allowing a wide scope to the privilege of making amendments and the success of litigants will turn too much on the dexterity of their counsel. The courts have declared in innumerable instances. that the statutes permitting amendments should be liberally construed, but have often decided questions of prac
In Schwab Clothing Co. v. Railway Co., 71 Mo. App. 241 the subject was discussed in the light of various decisions in this and other States and the criterion above mentioned adopted. The same test was approved by the Supreme Court in one of its late utterances on the question in Rippee v. Railway Co., 154 Mo. 358, where it is said:
“If the amendment is merely the same matter more fully or differently laid to meet the possible scope of the testimony, it is not a change of the cause of action.”
See also Lottman v. Barnett, 62 Mo. 159, to the same effect. The statutes permit amendments which do not sub
Appellant insists the amended petition in this ease violates the rule laid down in Ross v. Mineral Land Co., 162 Mo. 317, but the amended petition held to have been properly struck out in that case charged the defendants with having entered into a conspiracy to dispossess plaintiffs from their leasehold and as having done the acts complained of as conspirators, whereas, the first petition charged them as simple tortfeasors and on that ground only was the ruling of the circuit court supported. Under the amended pleading, one defendant alone could not have been guilty but must have acted with at least one other; under the original petition one could have been liable even if all the others were shown to have been innocent. The very gist of the occurrence was involved in the change of pleading and this might have involved a total change of proof. The conspiracy would constitute a separate occurrence, wholly distinct from the trespass which followed it and which alone was first charged. That authority by no means requires a ruling that the amendment in the case before us was improperly permitted.
The conflict in the decisions on this subject is partly owing to a failure to distinguish between amendments made before the trial and those made during or after trial. Much more liberality should be extended to a party in respect to amending if he asks to do so in time to give his adversary fair
Tbe fact that a larger sum was claimed in the first petition in this case than in tbe amended one, owing to a misapprehension as to tbe provisions of tbe contract, which was not before the pleader when tbe first petition was drawn, is relied on by appellant as constituting a departure in that it calls for a different measure of damages; but it could in no way operate to bis prejudice. Tbe measure of damages in each case was fixed by tbe terms of tbe contract as executed; and while tbe amount due plaintiffs, if tbe terms were as stated in tbe second amended petition, was less than would have been due them according to tbe allegations made in tbe original petition, tbe standard by which tbe amount was to be ascertained in either case was tbe same, namely: tbe terms actually stipulated; and both petitions conceded this. No departure can be predicated on such difference in the amount of damages sought. Chapman v. Currie, 51 Mo. App. 40.
Neither is tbe position that the first petition declared on tbe written contract and tbe second one on a verbal agreement, well founded. Both petitions unequivocally charged that a negotiation had been opened with Clark prior to the first day of January and that thereafter, when defendant was notified of that fact, and asked if plaintiffs might continue to act under tbe written contract and make a sale pursuant to its provisions, be agreed they might, accepted a purchaser whom they brought to him and reaffirmed tbe written contract as being still in force although the time in which plaintiffs should sell the farm as originally limited had expired. It thus appears that in each petition, plaintiffs alleged the extension of the time for the performance of the original agreement
The judgment is affirmed.