132 Mo. App. 320 | Mo. Ct. App. | 1908
Plaintiff brought this action to recover a commission on the sale of real estate and other property for defendant. He prevailed in the trial court. All of the property was not sold at one time, there being a period of near three years intervening. The petition alleges that defendant employed plaintiff to “procure a purchaser for all of said property in said city of Carthage, agreeing with the plaintiff that if plaintiff produced a purchaser or purchasers for the same that defendant would pay the plaintiff therefor the sum of one thousand dollars. That plaintiff at once set about procuring a purchaser such as would be satisfactory to defendant, and that plaintiff succeeded in procuring and did procure a purchaser for all of said property and that defendant sold and conveyed the property to the purchaser so procured by the plaintiff.” Demand and refusal of payment of the sum agreed upon is then alleged. The answer was a general denial.
Defendant complains of the refusal of the trial court to instruct the jury that if they believed that no time was fixed by the contract for procuring the purchaser, then it was the duty of plaintiff to procure him within a reasonable time and unless he did so there could be no recovery. While it is true that in this case defendant sold the property to the party originally brought to him by plaintiff, yet the law is that •if there is no time limit to the contract, a reasonable time is implied, and after the expiration of that time the owner may, in good faith, revoke the agency and sell to the party first discovered by the agent. [La Force v. Washington University, 106 Mo. App. 517.] And we held in an opinion by Broaddus, P. J., that after the expiration of such time a sale by the owner oper
The question here, as presented for decision, is solely one of pleading. Plaintiff contends that the instruction offered by defendant was properly refused for the reason that the defense of non-performance within a reasonable time was not set up in the answer. Defendant insists that such defense is admissible under a general denial. Aside from the effect which the pleading may have, there is no doubt the instruction was proper. [Hearst v. Williams (Ky.), 102 S. W. 1176.]
A general denial will permit the introduction of any evidence which tends to show that the case stated by plaintiff never existed. New matter, which the code requires shall be specially set up by answer, is rather in the nature of a confession and avoidance. It admits a cause of action once existed but for some intervening cause it has ceased. We discussed the question in Cushing v. Powell, 130 Mo. App. 576, and refer thereto for support of what we have here said. [See, also, Jones v. Rush, 156 Mo. 364.]
In this case the petition, by legal intendment, alleges the contract to be that a purchaser ready, able and willing to purchase was to be produced within a reasonable time. In order to make out his case it devolved upon plaintiff to show to the satisfaction of the jury that he procured such a purchaser within such time, that is to say, the time shown must be a reasonable time; and any evidence in defendant’s behalf was admissible under a general denial which would tend to prove the contrary. So, therefore, it seems apparent that the instruction presenting this phase of the evidence in defendant’s behalf should have been given. The judgment is reversed and the cause is remanded.