*1 Parrmer the Painless Com practiced there as Wisconsin went to Board him. Rust v. State regulatory a law until excluded pany [See 127, 256 N. W. Examiners, 216 Wis. of Dental Board heard the Missouri Dental proceeding’ was The instant June, 1939. occurred in in circuit court March, 1938. The trial in trial, appellant pamphlet had year before the Sometime vicinity. ap- head At the in St. Louis printed and circulated Eust, Dentist,” two name, “Dr. and his office A. J. peared his Missouri,” and was People “To the It was addressed addresses. dentistry. challenged high charges in It prevailing a diatribe on the he char- Organization.” the witness stand Dental On “Missouri’s kangaroo court, there was and said acterized Dental Board as dentistry; and that he than medical skill more mechanical skill against thought be allowed to advertise. He dentists should history recalcitrance were professional law. Dr. and all this Eust’s question whether revocation of his competent evidence punishment. license cruel and unusual trial court be affirmed. It is
We think the should J., sitting. except Tipton, All so ordered. concur Gee, Appellant. B. v. 745. John Two, Division 1941. October Baynes B. F. appellant. *2 Bpitler
Merrill and Ward for respondent. <&Beeves *3 636' this, against . BOHLING, action instituted C. John B¡ to sell- of a written contract specific performance
E.' for the Gee County, Mis- Madrid convey lands in New and certain described $2400, principal souri, among things, upon, payment -other of. seeking a 'alleging and amount; plaintiff’s petition alleged reason credit of on‘the aforesaid consideration three, sale of with the real connection estate commissions earned viz., $1320, on the sale of certain of land in a total sum of tracts defendant, rate, forty-acre acre, tract at the which 320-acre dispute, does not of two tracts —one Hugh-A. $2.-per rate of Tistadt, -the other to N. Clark—at W. acre. and all for the
The chancellor found the issues the issues interest, plaintiff- and, specific decreed adjusting after the credits by plaintiff. performance; upon of $1350.55 conditioned Defendant’s motion'for new trial attacked the-whole of the decree prosecuted appeal of the -court. to--the there, here, Springfield Appeals presented Court questioning issues nisi. propriety credits allowed cqurt, ground That .on the to real estate .within-the title was involved meaning:of 6,-Sec. 12, Const., pro Art. Mo. transferred review here; ceedings (Mo. App.), We Gee [Tant .appellate jurisdiction subject-matter have .over the -is deter mined appeal record in the trial court at the time the granted. Trimble, 702, 709, rel. Brenner v. ex 326 Mo. [State (2d) 760, S. W. McGregor Gaskill, 762[2]; Hughes, Consult State ex rel. Brown v. S. W. 124[6].] Mo. (2d) 544, Springfield cited Court-of Appeals. .. question
Defendant. does not certain matters of a technical- nature *4 the in mentioning record. We refrain from these and take the case .presented. as real, This is not a case involving the mere listing of estate with a .broker-for .sale. It a special brokerage. involves contract of petition, evidence and decree are based on said contract. The contract sale, of and plaintiff and defendant ‘No is dated between provided, vember 1935. It among things other and insofar as here material, payment by for the plaintiff ($30 acre) of per in six annual installments, with date,, last-becoming- interest.from the due 1, 1941; for possession November the by- plaintiff immediate thereof and his clearing said land reducing and the cultivation,- same by lien on one-third of the corn and .defendant' one-fourth of the cot ton to payment secure.the of purchase price; the and for the kvoid anee. contract performance by default plaintiff, in the et cetera. By therewith, even signed by letter.-of date defendant and addressed to and “accepted by” plaintiff, defendant- authorized involved, to sell the here and others, per acre; lands stating, among things the letter other material, and insofar aS “agree defendant would to a of sale said land the basis that on the purchaser make cash at the purchase, provided’’ no time of the customer one-half purchased by reduce of land the to cultivation April 1, 1936, by the April 1, 1937, balance pay therefor in specified annual installments, interest; explic- conditioned itly, among things, other as follows: you may
“For such sales as in above, make accordance with the agree give you I you credit on purchased have me, from per acre, at the rate of might $1.00 land you sell; on such as when and only any given when I have collected from sale the -per sum of $1.00 you greater acre and are to have any your purchase on from me, than the total of the cash you received me from might make. is not option “This to be construed yon, as and I reserve right
the myself sell said land dispose through same the agents other I reserve price raise the on land said or to remove the same from the you. market without notice to By letter 28, 1936, dated March from to; defendant and “accepted by,’’-plaintiff, brokerage contract was modified as follows: letter “This will confirm agreement our recent verbal and will supplement our contract you as"to the-amount are to receive selling for vicinity land for me in the of Wardell wherein E. B. Gee pay is to John per $2.00 selling acre for land in the future instead per original acre per contract, being this change ’’ contract; said all other remaining covenants the same. April 6, 1936, Hugh On A. Tistadt contracted to acres of the land ($30 involved for per acre), with interest date, payable: on $480 November 1937, $1440 on November 1, 1938, and the balance at the annually $6- rate No on vember ensuing year 1st of each paid. until Tistadt contracted to have ready acres thereof plow April, 1937, and a Tniniumm of 320 acres in cultivation in 1938. The provided for a lien to defendant on one-third of the corn and one-fourth produced cotton land ensuing years in 1937 and to- secure payment of purchase price and for the execution of a deed to purchaser upon performance of the covenants with' respect to clearing the payments land and “during clearing period,’’ et cetera. petition proceeds Plaintiff’s upon the theory defendant voluntarily neglected and in bad faith to collect the payments cash defraud of his commissions. Plaintiff testified he mailed September, letter in 1938, which defendant testified he *5 received, never instructing defendant Tistadt, to collect from plain ' tiff wanted his commission credited. -We need not detail' the testimony. any1 Mr. Tistadt never made on his ‘contract 638 to meet the terms of not able He testified was purchase. and that when all;” to make them
contract; “I wasn’t able going perform expect to he was gave him to understand contract to defendant. sale, he surrendered contract of ance of the produces pur when he his commission Usually, a broker earns specified upon the terms willing purchase to ready, and able chaser not, or or upon be owner, transaction closed by whether the brokers, and their However, owners satisfactory to the owner. terms liability upon by expressed contract condition others, may their like precedent. contingencies or conditions events, prescribed [Hughes 448; 446, 460, 146 W. 454, S. Dodd, App. 164 Mo. & Thurman v. 215, 168 W. 220, 259 S. Works, Mo. Cooperage Young Stecher v. 828, Co., 320 Mo. Development Val. 611, 612; v. Pleasant Gibson Washington LaForce Uni 828, 831 v. (2d) 8 838(VI), S. W. [4]; (Mo. App.), 209; Pratt v. Irwin 81 S. W. versity, App. 517, 106 Mo. 278, 195 App. Co., 197 Mo. v. Peer Inv. 189 Westerman S. W. plain to was purchase contract of similar Mr. Tistadt’s S. W. 78.] within terms provisions were purchase and its contract of tiff’s willing ready, not brokerage contract. Tistadt was plaintiff’s perform never did and able to and his Plain making any payments thereon. clearing respect to pur credit on his his brokerage contract conditioned tiff’s by defendant; per acre receipt cash chase contract to the when and when defendant is,' plaintiff to receive such any given acre from sale Collected $2 cash received greater purchase than the total credit on his no receive by purchaser, plaintiff. made The defendant from testimony defend is that owner-defendant, was default. by Tistadt, requested-it, willing accept ant was dis actively prevent performance. hinder or did not willingness perform. charged obligation continued his Boley’s 431, 248 Passiveness Estate, 211 Wis. N. W. re [In 156, (Amies Wesnofske, v. 255 Y. 174 N. part owner’s N. on Boley’s 918, 922; Estate, supra) or consent 436, 73 L. R. Re A. of default contract of sale after and because cancellation of the 64 (Sweet Co., v. H. R. Howenstein part purchaser on the Colomb, 660, 20, (2d) 73 Fed. Dunne v. App. D. C. 661[2]; 323, Infeld, 912, Weiner v. 116 Misc. 740, 221 Pac. Cal. 913[2-4]; arbitrary, capricious, 82, 85 is not evidence of 190 N. S.Y. [7]), part of the unreasonable, wrongful or fraudulent action ready, willing purchaser produced Plaintiff never owner. e.-, brokerage; of his contract of i. perform able to within the terms price, payments cash is not entitled make Plymouth Co., App. Securities recover thereon. [Prideaux (Mo. App.), ; Pratt Irwin 170[4] S., 229, 230; 8 Am. pp. J. C. Consult [3]. *6 Annotations, 1399(II); 51 A. 73 A. L. R. Jur., p. sec. App.), 496,W. 929(II); (Mo. L. R. Smith v. Stubb 498.[7].] respect With to the N. W. transaction Clark it is sufficient agreed to acres for $8000 to state that Clark August 10, 1936; ($25 acre) and that out this per transaction eventually ($1800). realized sufficient cash Clark’s defendant grantees-to plaintiff’s $640,-if pay commission of earned. Defendant when priced $30.per that first the land to Clark at acre testified .he at, it; buy asked to that price; Clark about that Clark refused that they agreed upon per acre; $25 and that Clark later neither nor plaintiff plaintiff him informed that had shown the land or discussed to that plaintiff with Clark. Clark testified it had shown him; fact, plaintiff that he informed defendant of that and that to. him he selling informed was to an acre land. $2 receive for “Q. you Plaintiff testified: What was said between and Clark about doing get A. if he down, better? He said could it cut now what it. I is up you, price per about it to acre. He $30.00 said'that agreed at that that time.” Also: he accompany to did not That to purchased; Clark New Madrid at the time Clark that he didn’t (who know that notified Gee represented he or Edwards also Mr. Gee) coming; notify that was he them; Clark that did that tele he phoned Blytheville, Arkansas, Gee “Q. you at about Clark. Did you tell him of had made to for per the sale Clark acre? A. $30.00 I say didn’t about anything per acre, the speaks $30.00 I for that. Gee I told was satisfied Mr. going Clark was it take per No, sir, acre. I $30.00 didn't tell them going try he was get price they stay cut down if they but would get me would per Yes, sir; $30.00 acre. . . I I . had it for $30.00 sold per acre. I No, .sir, party didn’t tell him going try get price Yes, reduced. . . sir; . I knew that under'this con tract it was to be sold for per $30.00 acre.”
Plaintiff understood his contract brokerage called for a sale per at acre. prevent $30 not plaintiff did making such agreed a sale. Plaintiff to-defendant’s reservation to real sell A estate. duty sale for an $25 was not a $30 sale for acre. acre an interpret of courts is to contracts, enforce to make not may willing pay them. One be commission of an $2 acre for the entirely sale of land at acre $30 an Unwilling to pay $2 an for a per $28 less acre. we Unless rewrite the brokerage plaintiff defendant, contract for is not entitled to recover under contract sued on. & Dodd, Thurman v. [Hughes supra; Young Works, v. Stecher Cooperage supra; Gibson v. Valley Pleasant Development Co., testimony Plaintiff’s is somewhat supra.] contra dictory. First he did testified he not know that he notified de coming fendant Clark land; next that he did notify Also, say defendant. did anything he not to defendant Not acre; next that he did so inform defendant. about the legally bound withstanding testimony contra, never plaintiff’s Clark best, agreed upon price an acre. At pay $30 himself to acquiesced a reduction. Plaintiff only in event he could secure that, attempt in an Plaintiff’s tends to the conclusion this. version unnecessarily yielded acre, an to defraud business. acre. not the usual up an additional This is course of *7 could sell admittedly Plaintiff did inform stay with” that Clark’s if he “would Clark at securing a coming purpose reduction expressed was with the 541, 544, 172 S. Daugherty Stocks, App. W. an acre. flagrant duty agent owes if 616, breach “.It is 617, states: material facts it principal concealment of he deceives his Joy Bixby (Mo. compensation.” forfeits his [Consult n. J. App.), ; C. J. S. C. (2d) 343[5] n. 67.] cause directions and the remanded with is reversed specific plain- credit to to condition the decree conformity West- proceed tiff of herewith. and otherwise Barrett, GC., hues and concur. foregoing opinion C., adopted
PER CURIAM: The Bohling, judges the opinion of the court. All the concur. Kathryne Widaman Love v. M. Administrator with Will J. White, Annie Appellant.
Annexed of the Estate of Vaughn, 759. Two, Division October 1941.