107 Mo. App. 362 | Mo. Ct. App. | 1904
Lead Opinion
This is a suit for commission for sale of defendant’s land. The plaintiffs, S. E. Sankey and one Boissean, were respectively independent agents of defendant for the sale of his land. The plaintiffs procured a purchaser by the name of Horton who was able to buy the land and who agreed to take it at defendant’s price; but prior thereto defendant had entered into an option contract with said Sankey to sell the land to him, and when plaintiffs produced their purchaser defendant declined to accept him as such. Sankey afterwards sold the land with other property to another party and defendant conveyed to the purchaser. The contract of sale between said Sankey and defendant is as follows:
There was a trial and verdict for the defendant. The giving and refusing of instructions raised two questions, viz.: Was the plaintiff entitled to a verdict upon a showing that he had produced a purchaser able and willing to buy the land, notwithstanding defendant had already sold it to another, if he had so sold it? Did the option contract in evidence constitute a sale?
The great weight of authority is to the effect that, when the owner makes a sale himself it operates to revoke the authority of the broker without notice. Ahern
The next consideration is, did the writing in question constitute a sale? A similar instrument was held to be void. Ramsey v. West, 31 Mo. App. 684; Huggins v. Safford, 67 Mo. App. 469. In the latter case the court held: “A contract for the sale of certain land on a certain day ‘and if payment is not made by said day that this contract is to be null and void’ and the vendor released from all obligations to the vendee is a mere option to buy the property within the specified time and gives to neither party a claim for damages for its violation. ’ ’ And in Davis v. Petty, 147 Mo. 374, it was held: “An agreement in writing and under seal by the owner of land granting an option to purchase the same for a
But the defendant claims that there was a consideration for the agreement here. The evidence upon that question was as follows:
“Q. Well, Mr. Sankey, what if any consideration did you pay for this contract? A. Well, in consummating another trade, I had an option on two hundred and forty acres I had just sold prior and there was an account for notary work, some $3 or a little over, and he was in my office and in settling up he paid off the abstract in the case and asked me how much he owed me. I told him something like $3 notary fee, but that I would not charge him if he would give me the same contract on the other place and I would sell it, too. , That account was the consideration for this option.” No court of equity would grant specific performance on such a consideration. And in our opinion, the so-called consideration was not of sufficient importance to give validity to the said writing as a contract for a sale. The only force the writing imported was an authority for San-key to sell. And it seems that it was so treated by the parties. It therefore follows that at the time plaintiff produced a purchaser for the land it was still in the power of the defendant to have consummated the sale and accept the purchaser so produced. And it follows, as a necessary sequence, that the so-called contract did not operate as a revocation of plaintiff’s agency.
The court was in error in refusing instructions numbered A, B, C, D and E offered on the part of plaintiff and in giving instructions 2, 3 and 4 for the defendant, the former (number two) being irrelevant as there was no evidence of sale made by defendant prior to the time plaintiff under all the evidence produced a purchaser for the land.
For the reasons given the cause is reversed and remanded.
Rehearing
Appellants contend that court was in error in holding that there was no sufficient consideration for the contract of sale between Sankey and defendant, and that said contract otherwise did not in law constitute a sale. The authorities cited are to the effect any appreciable consideration is sufficient to support a contract of the kind in question. Green v. Higham, 161 Mo. 333; Anderson v. Gaines, 156 Mo. 664.
In the original opinion we held that the consideration claimed to support the writing as a contract was not sufficient. "We still think so, as at best it was merely a pretext, and was not deemed of sufficient importance, by the parties, to be inserted in the writing.
But the motion will have to be overruled for another reason. The writing stipulates that the purchase-money is to be paid: ‘ ‘ Cash' on delivery of deed; or one-half on time if terms can be agreed upon at time of sale.” As the terms of payment are uncertain.a decree of specific performance would not be decreed. Paris v. Haley, 61 Mo. 453. “An agreement for sale of lands in which it is stipulated that the purchase-money is to be paid, on such terms as may be agreed on between the parties can not be enforced in equity.”' Huff v. Shepard, 58 Mo. 242. "Such an undertaking to settle terms at a future day, is beyond the reach of any decree for specific performance.” We are satisfied with the original decision.
The motion is overruled.