Wanstrath Real Estate Co. v. Wenz

185 Mo. App. 162 | Mo. Ct. App. | 1914

ALLEN, J.

This is an action to recover a broker’s commission upon the sale price of certain real estate in the city of St. Louis, in accordance with the terms of a written contract entered into between the plaintiff corporation and the defendant owners of said property. The cause was instituted before a justice of the peace, where plaintiff had judgment. Upon defendants’ appeal to the circuit court, and a trial de novo there, before the court and a jury, the court nereniptorily directed a verdict for plaintiff. From a judgment entered upon the verdict so returned, the defendants have appealed to this court.

The written contract in question was of date December 14, 1910, and provided that plaintiff would make two building loans to defendants upon certain' lots of ground, for the purpose of erecting certain improvements thereupon,- defendants to pay a commission for plaintiff’s said services in securing such loans. The contract also appointed plaintiff the sole agent of defendants to sell the lots and improvements when the building had been completed, and provided that plaintiff should receive a commission of two and one-half per cent on the sale price, and that should the sale be made by defendants, or any one else, the plaintiff would nevertheless be entitled to the aforesaid commission.

The said loans were made and the improvements erected, but it does not appear when the latter were completed. On May 23, 1911, the defendants, by a letter written to plaintiff, undertook to revoke plaintiff’s authority to sell the property. In the latter part of September, 1911, defendants sold the property for the price of $5500; and plaintiff’s claim is for two and onelialf per cent of said sale price, to-wit, $137.50.

The point was made below, and is preserved here, that the petition failed to state a cause of action, in that it failed to alleged that the contract in question was in force at the time of the sale of the property by defendants. But there is no .merit in this contention. As to this it is unnecessary to say more than that the petition, to which was attached a copy of the contract, was sufficient to apprise the defendants of the nature of the claim against them and to operate as a bar to another action upon the same demand. It was therefore a sufficient statement before a justice of the peace.

The giving of the peremptory instruction is assigned as error.

It is urged that the defendants could rightfully revoke plaintiff’s agency, upon the theory that the latter was one not coupled with an interest, which the principal could terminate at any time; that defendants had so terminated the same and that hence the contract was not in force when defendants sold their property. But this contract not only appointed plaintiff as defendants’ agent, but defendants thereby agreed to pay plaintiff a commission upon the sale price of the house whether such sale were made by plaintiff, the defendants, or any one else, during the life of the contract; whereby the defendants disabled themselves from making a sale of their property, without liability to plaintiff, during the period for which the contract would lawfully remain in force. [See Mercantile Trust Co. v. Johntson, 177 Mo. App. 503, 160 S. W. 535; Mercantile Trust Co. v. Lamar; 148 Mo. App. 353, 128 S. W. 20.]

But as the contract in no way stipulated the period of time during which it was to continue in force, it would lawfully remain in effect for a reasonable time only. [See Dickmann v. Treseler, 175 Mo. App. 601, 158 S. W. 76; Green v. Wright, 36 Mo. App. 298.] And the only serious question involved is whether it was proper for the trial court to peremptorily direct a verdict for the plaintiff, thereby, in effect, declaring, as a matter of law, that a reasonable time had not elapsed, and that the contract necessarily remained in force and effect. What is a reasonable time for the performance of a contract is ordinarily a question for the jury, for, as is said by Thompson, J., in Green v. Wright, supra, l. c. 304: “It is ordinarily a practical question, upon which the opinion of twelve practical men in a jury box is presumptively of greater value than that of a legal scholar upon the bench.” There are undoubtedly cases in which the question may he passed upon as a matter of law, as it was in Green v. Wright, and Dickmann v. Treseler, supra, in each of which it was held that after the lapse of a period of approximately three years the court could say, as a matter of law, that a reasonable time had been allowed a real estate broker to attempt to procure a sale of property in his hands. On the other hand, the period of time may be so short that the court may declare, as a matter of law, that the real estate broker was not accorded a reasonable time within which to act. In the instant case the contract wa.s executed December 14, 1910. The property was sold by defendants in the latter part of September, 1911, though it does not appear when the improvements were completed. Under the circumstances we think that the trial court should not have declared that a reasonable time had not elapsed and that the contract was in force, as a matter of law, as the court did by giving the peremptory instruction. The question was one depending upon all of the facts and circumstances involved, and should, we think, have been submitted to the jury to pass upon.

In Althoff v. St. Louis Transit Company, 204 Mo. 166, 102 S. W. 642, it is said by Fox, J.: “The court cannot declare, as a matter of law, in any given case, what would be a reasonable time within which to malee a tender. That is a question of fact for the jury to determine according to the facts and circumstances of each case, under the guidance of proper instructions to be given by the court. ’ ’

In Manufacturing Company v. Worrell, 172 Mo. App. 90, 154 S. W. 866, it is said that the expression of the learned judge just quoted. should be taken merely as a statement of the general rule; and that where the circumstances of the particular case were such that no two reasonable minds could arrive at a different conclusion the court might, as a matter of law, say that a given period of time for the performance of an act would or would not be reasonable. [See Manufacturing Company v. Worrell, l. c. 98-101, and cases cited.]

In the case before us, certainly the lapse of time was not so great as to justify the court in declaring, as a matter of law, that a reasonable time had elapsed. On the other hand, we are constrained to the view that we could not say that the period which had elapsed was so short that the court could declare, as a matter of law, that a reasonable time had not elapsed, but that whether or not the contract made December 14, 1910, should be regarded as remaining in force and effect at the end of September, 1911, was a matter for the consideration of the jury and should have been submitted to the latter.

The judgment will therefore be reversed and the cause remanded. It-is so ordered.

Reynolds, P. J., and Nortoni, J., concur.