| Mo. Ct. App. | Mar 3, 1913
Action to recover commission as a real estate broker. The jury found for defendant. Plaintiff claims the admitted facts show he should recover the amount sued for; that the jury was erroneously instructed; wherefore he asks a reversal with directions to enter judgment in his favor. Defendant contends that plaintiff must fail without regard to whether error was committed. This assertion, if well founded, disposes of the case. Hence it should be considered first. It is, based upon two grounds: First, that plaintiff abandoned his efforts to effect a sale; second, that his efforts did not result in bringing about a trade. To consider these grounds satisfactorily requires a statement of the facts which are these:
Defendant owned a farm of 643 acres in Boone . county, Missouri, which he desired to exchange for land in western Kansas. Plaintiff was a real estate agent living in Columbia, Mo., and was in the employ of the Garden City Land and Immigration Company, a real estate corporation at Garden City, Finney county, Kansas. The object of plaintiff’s employment with the company was to assist in selling or trading lands it had for sale or trade in said county. Defendant admits that, when he told plaintiff of his desire to trade
While at Garden City plaintiff showed defendant the company’s maps of the various lands it had for sale or trade, and spent nine days out there showing defendant over various tracts of land.
It is in evidence that McCue was not only president of the company, but that up to April, 1911, he was practically the sole owner of the company; that the company had in charge for sale or trade an immense amount of land, some of which was owned by three men, Dutton, Clark and McCue, and some-by Dutton individually; and that the company was en
In going ont from Garden City to look at land plaintiff would frequently accompany defendant, but sometimes Kiff and sometimes McCue would go. But, in the nine days spent out there, all three of the men, McCue, Kiff and plaintiff were working for the company, and plaintiff was working for both defend-, ant and the company. Plaintiff and defendant disagree over whether any of Dutton’s individual land was shown him by plaintiff, the latter claiming he did and the defendant insisting that Dutton’s name was never mentioned to him. Defendant contends that the only land he had under consideration at that time was land belonging to Clark and McCue. Whether this be true or not the evidence shows that Dutton had an interest in this Clark-McCue land, which defendant says he looked at. At any rate a number of tracts were being favorably considered by defendant but it seems that Clark was not willing to trade, and defendant and McCue went to Hastings, Nebraska, to see Clark who still declined to trade. Thereupon McCue introduced defendant to Dutton and a contract was finally closed between them for an exchange of defendant’s farm for some of Dutton’s individual land. This contract and exchange was made by McCue although Dutton, before finally closing the trade, took the advice and help of his cousin, St. Clair, who lived in Columbia. Dutton paid McCue for his services in engineering the deal for him. Whether defendant had been shown any of Dutton’s individual land before going to Hastings or not, the negotiations between Dutton and defendant began after they' reached Hastings and continued from that time until about January 2, when the deal was closed. Plaintiff was not informed of these negotiations nor of the fact that they were being continued after he .and defendant returned to Boone county. Being in entire ignorance of the fact
Was it his efforts that brought about,a trade? This question is really answered to some degree by what has already been said. Plaintiff’s contract was not that he should find one willing to'trade on terms that defendant would find acceptable and then attend to the negotiations and bring the parties safely through them to a perfected trade before being entitled to his pay. All he had to do was to bring the parties together and let them do the necessary dickering. He brought them together because he first informed defendant of the company and his connection therewith, then he went to the company and told them of defendant. By his efforts the company came to look at defendant’s land and then defendant went with plaintiff to look at the lands which the company had in charge. Plaintiff says he showed defendant the actual land, or part of it, that defendant afterwards traded for. But, whether he did or not, his coworker the land company, agent of the man with whom defendant traded, did do so. If this be true, it cannot be said that his efforts were not the procuring cause of the trade. [Smith v. Truitt, 107 Mo. App. l. c. 6; Bass v. Jacobs, 63 Mo. App. l. c. 396; Jones v. Berry, 37 Mo. App. l. c. 130, and many cases there cited.]
But it is said McCue, in negotiating the contract of exchange, acted as an individual and not as president of the company. He was the practical owner of the company and was its president. He and plaintiff were both working for the company to make a trade for it as agent of Dutton. It is rather difficult to understand how he could change his exertion from an official to an individual capacity and thus defeat plaintiff of his pay, especially when such change is accomplished by noth
Defendant’s instruction No. 3 told the jury that “if the trade was made solely hy W. S. St. Clair and the defendant has paid him a fee therefor, then plaintiff is not entitled to recover.” This was error, first because the evidence showed that the trade was not made solely by St. Clair. McCue, president of the land company, introduced them and signed Dutton’s name to the contract and Dutton paid McCue for his services. It is true, St. Clair, at Dutton’s request, advised him as to the farm 'and St. Clair’s influence may have helped induce Dutton to trade, but it was not solely by reason of St. Clair’s efforts. Hence there was no evidence to support such an instruction and it should not have been given. [Jones v. Grossman, 59 Mo. App. 195" court="Mo. Ct. App." date_filed="1894-11-05" href="https://app.midpage.ai/document/jones-edwards--co-v-grossman-6617805?utm_source=webapp" opinion_id="6617805">59 Mo. App. 195.] Second, the payment of a commission to St. Clair by defendant had nothing to do with plaintiff’s right to a commission, and the instruction was misleading and confusing to the jurors, who would readily infer that if St. Clair had helped at all in the trade, and defendant had paid him, then defendant ought not to be made pay again.