119 Mo. App. 231 | Mo. Ct. App. | 1906
Plaintiff, a real estate agent, sues to recover commissions which he claims to have earned under a verbal contract of employment. The jury returned a verdict in his favor in the sum of $1,100, but the trial court sustained the motions for a new trial and in arrest of judgment filed by defendant and plaintiff appealed.
At the time the contract was made, defendant, the head of a family, owned and occupied a farm of two hundred and thirty-seven acres in Warren county. Plaintiff testified that on November 6, 1903, accompanied by a Mr. Foristell, he went to defendant’s home for the purpose of obtaining employment as agent to sell the farm. Defendant was willing to sell and valued the place at $5,900. Plaintiff inquired, “Will you give me a commission for selling your place?” Defendant answered, “No, you will have to make your commission out of the buyer, but, if you get a buyer for me for $5,900, you can have all over that amount, $5,900, that you may get for your commission.” Terms of sale were then discussed. We quote from plaintiff’s testimony: “I said, ‘On what terms will you sell it?’ He said, ‘I am not particular, but I will leave $3,000 or $3,500 on the place.’ I said, ‘How much do you want paid down to bind the bargain?’ He said, ‘I am not particular, $250, $300, or $400, so it is safe.’ I said, ‘If I furnish you with a buyer, will you furnish a good deed and furnish an abstract and deliver it?’ And he said he would. . . . “In regard to possession being delivered to the purchaser, Mr. Euhwedel said that he would have to have time to have his sale and get away and that he would like to stay until the first of March, 1904. ... I was to have thirty days within which to find a purchaser . . . the deferred payments were to bear five per cent compound interest to be secured by a deed of trust on the land for the deferred payments to run two years. These matters were all discussed between Mr. Euhwedel and myself, the details
Defendant’s version of the agreement made is stated by him in this language: “I agreed with Mr. Young to take $5,900. Mr. Young asked me if I would pay him a commission if he sold my farm and I told him I would not give him any commission, that I wanted $5,900 clear and, if he could make any commission out of the buyer, he could do it that way, that it was satisfactory to me for him to sell for any price he saw fit so I got $5,900 and he would have the balance for his commission. I agreed to carry $3,000 or $3,500, on the place for two years at five per cent interest. I agreed that the person purchasing the farm might pay $500 on any interest pay day. I agreed to give possession on the first of March. Mr. Young was to sell the place within thirty days or have no right to sell it at all. He asked me if I had an abstract of title and I told him I had and I told him I had a good title to the place. Nothing was said about a payment being made, I thought I was to be paid for the place when I delivered the deed. Nothing was said about making the deed at that time, but I expected to be paid for the land when I gave the possession.” After the agreement was made plaintiff returned to Warrenton, his home, and at once communicated by telephone with a firm of real estate dealers in Mexico, Missouri, the fact that he was authorized to sell defendant’s farm. The next day the Mexico agents brought with them to Warrenton a Mr. Snyder of Waukee, Iowa, who was looking for a farm. Plaintiff went with the party and assisted by defendant and his family showed Snyder the land and improvements. No sale was made at the farm, but after the return of plaintiff and Snyder to Warrenton a sale was agreed on at the price of $7,000 and a written contract was drawn and signed by Snyder
At the execution of this contract Snyder gave plaintiff his check for $1,500 drawn on a bank in Waukee, Iowa, to make the first payment. It was shown that he had funds on deposit in that bank sufficient to cover the amount of the check. Plaintiff accepted it and gave Snyder a receipt for it as so much cash. Plaintiff notified defendant through Foristell of the sale and, being informed that defendant would not execute a deed, drove to the farm, read the contract of sale to defendant and urged him to complete the transaction. This is plaintiff’s account of what transpired: “The only reply that
Defendant admitted: “Everything that Mr. Young explained to me was a.11 right so far as I understood it and the way he read it to me. I told him on that occasion that he had gone ahead and done-all he had agreed to do and that I was sorry I couldn’t carry out
In sustaining the motions for a new trial and in arrest the court assigned the following reasons:
First: Because the court erred in refusing to sustain defendant’s demurrer offered at the close of plaintiff’s evidence in chief for the reasons: (1) Because there is no evidence that defendant appointed plaintiff his agent or that any contract of agency was understandingly entered into between the parties; they were dealing with each other at arm’s length. (2) Because the verbal agreement between them was in the nature of a roving option to buy rather than of agency, and there was no consideration to support the agreement. (3) Because plaintiff did not bind himself to do anything, hence the alleged contract was not mutually binding. (4) Because the alleged agreement-is within the Statute of Frauds.
Second: Because the court erred in giving plaintiff’s instructions numbered 2 and 3 for the reasons above given.
Third: Because the court erred in giving plaintiff’s instruction numbered 8, for the reason that the court peremptorily instructed the jury, in case they found for plaintiff, to assess his damages at $1,100, said sum being grossly excessive under the evidence so- far as actual damages go.
Fourth: Because the greater weight of the evidence is that plaintiff’s purchaser was financially, unable to perform the conditions of the alleged contract of sale on his part, hence the verdict of the jury is against the
Fifth: Because the suit was prematurely brought, and defendant’s motion in arrest of judgment is seen and heard by the court and sustained.
First, we will consider the questions involved in the conclusion of the learned trial judge that the demurrer to the evidence of plaintiff should have been sustained. As the employment of plaintiff by defendant to act as the agent of the latter in the sale of the farm was not evidenced by a written contract signed by defendant, the written contract made by plaintiff with the purchaser Snyder falls within the Statute of Frauds— so far as defendant is concerned — and therefore could not have been enforced by Snyder .against defendant. Since the enactment of the provision in section 3418, Revised Statutes 1899, that “no contract for the sale of lands made by an agent shall be binding upon the principal unless such agent is authorized in writing to make such contract,” it has been held repeatedly that in the absence of written authority to sell, signed by the principal, the fact of the existence of the relation of principal and agent does not of itself confer authority on the latter to bind his correlate with respect to the subject-matter of the employment. [Johnson v. Fecht, 185 Mo. 335; Hawkins v. McGroarty, 110 Mo. 546; Roth v. Goerger, 118 Mo. 556; Fox v. Courtney, 111 Mo. 147; Greening v. Steele, 122 Mo. 287.]
But we are not dealing here with an action founded on the written contract of sale made by the agent with the purchaser. The cause asserted springs from the agreement of defendant to employ plaintiff as his agent to sell land and the procurement by the agent from the purchaser of a written contract was but an incident of the employment — an act in the performance thereof and the importance of that contract in its bearing on the rights of the parties does not arise from the fact that it could not be enforced by the purchaser against the prin
We do not agree with the view that the verbal agreement between the parties was not a contract of employment, but “was in the nature of a roving option to buy rather than of agency,” nor can it be true under any interpretation of the evidence that “the parties were deal
The contract was supported by a sufficient consideration — the agreement of plaintiff to perform the services required by its terms. Our conclusion on this branch of the case, is that the existence of the agency must be assumed under the admitted facts and it remains to be ascertained whether or not plaintiff produced a purchaser willing and able to buy the land on the terms authorized by defendant and thereby earned a commission under the contract of employment.
Before disposing of the questions presented by this feature of the case, we will determine another point made in the argument of defendant. It is urged that as the farm was the homestead of defendant and his wife, and therefore their joint estate, the contract of employment must be held void because the wife was not a party to it. Recently, in the case of Curry v. Whitmore, 110 Mo.
It is contended that in bringing to defendant the written contract of sale plaintiff did not produce a purchaser, since he had no valid authority on behalf of his principal and the only thing he was authorized to do' was to find a buyer who would buy the place on the terms stated and introduce him to defendant. Notwithstanding plaintiff had no legal authority to bind his principal in a contract of sale, the contract he made with Snyder was not absolutely void, as erroneously assumed by defendant. It was valid and binding on the purchaser at the election of defendant. It cannot be denied that, had defendant chosen to ratify it, the purchaser could have been held in damages for his failure or refusal to carry out its terms. The production of the contract was legally equivalent to the production of the purchaser himself. [McCray & Son v. Pfost, supra; Huggins v. Hearne, 74 Mo. App. 86; Rice v. Ruhlman, 68 Mo. App. 503; Hayden v. Grillo, 35 Mo. App. 647; Gelatt v. Ridge, 117 Mo. 553; Chipley v. Leathe, 60 Mo. App. 15.]
Defendant admitted that the contract embodied the terms of sale authorized by him. The willingness of the purchaser to perform its conditions is conceded, but the
The suit was not prematurely brought. Plaintiff had the right under his contract of employment to provide, as he did, for the payment of his commission out of the first payment made by the purchaser. He had the money or its equivalent in hand and defendant’s wrongful refusal to carry out the contract compelled him to restore to the purchaser the commission he had earned. His cause of action became complete on defendant’s repudiation of the sale and the bringing of this suit followed that act. [Nichols v. Whitacre, 112 Mo. App. 692; Gwinnup v. Sibert, supra.]
It follows from what we have said that no error was committed in the refusal to give a demurrer to the evidence.
Plaintiff’s instruction number eight was properly given. The measure of his damages is the amount of the commission he earned and lost through defendant’s wrong. The parties in the contract of employment adopted the rule to be applied in fi::ing the compensation of plaintiff for his services to be performed thereunder and this rule should control.
The fourth ground assigned by the court in its order granting a new trial must be sustained. The facts in evidence relative to the ability of the purchaser to per
Counsel for plaintiff argue that the court abused its discretion because of the undisputed fact that plaintiff, a man of means, offered to pay the whole of the purchase money if defendant was not satisfied on the point of Snyder’s ability to meet the deferred payments when they fell due. Defendant did not wish to have the whole of the purchase money paid, but preferred as an investment to carry a loan of $3,000 or $3,500, secured by deed of trust on the land. Being the owner of the property, he had the right to fix the terms of sale and this he did in the contract of employment. Plaintiff’s offer, therefore, was in effect a proposal to vary the terms of sale authorized by defendant in a substantial particular. He did not offer to advance the payment of $2,000, Snyder was required to make by March first and look to Snyder for reimbursement, which, if accepted, would have enabled Snyder to meet all of his obligations in the manner provided. For the reason stated, if for no other, the offer must be rejected as valueless, since it did not in any way add to the ability of Snyder to perform the contract of sale in all its terms.
We do not find it necessary to comment further -on the instructions given and refused as the views expressed will furnish a sufficient guide in a retrial of the cause.
The judgment is affirmed.