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SALLEE et al. v. McMURRY.

(St. Louis Court of Appeals. Missouri. June 1, 1905.)

1 REAL ESTATE BROKERS-RIGHT TO COMMISSIONS BRINGING PARTIES TOGETHER.

A real estate broker earns his commission on producing a buyer able, ready, and willing to bey on the terms fixed by the owner, whether the sale is actually made or not.

Ed Note. For cases in point, see vol. 8, Cent. Dig. Brokers, §§ 73-81, 91–97.]

2. SAME-PROCURING CAUSE OF CONTract.

A real estate broker is entitled to his commission on a sale of land, where he is the procoring cause of the negotiations resulting in a sale. though the agent does nothing more than to bring the parties together for the purpose of negotiating, and the negotiations are conducted and concluded by the principal in person.

Ed_Note-For cases in point, see vol. 8, Cent. Dig. Brokers, §§ 69, 74.]

3. SAME-FAILURE TO COMPLETE CONTRACT NEGOTIATED.

Where a contract for the employment of a real estate broker to procure a purchaser contained nothing as to the terms on which a sale was to be made, and the owner fixed the terms on meeting the purchaser produced by the broker, which the purchaser agreed to, the broker was entitled to his commission, though the owner failed to carry out the contract made with the purchaser.

[Ed. Note.-For cases in point, see vol. 8, Cent. Dis. Brokers. §§ 69 74.]

4. SAME-REFUSAL OF PRINCIPAL TO CONVEY.

Where a real estate broker employed to procure a purchaser of land produced a person rendy and able to buy, and he and the owner agreed on the terms of purchase, by which the purchaser could have the land at any time befare a certain date if the owner did not sell to others, and the purchaser offered to take the hod on the terms agreed on, and the sale was defeated by no other cause than the owner's refusal to convey, the broker was entitled to his commission.

[EdNote.-For cases in point, see vol. 8, Cent. Dig. Brokers, §§ 81, 94–96.]

5. SAME TIME OF EMPLOYMENT.

A broker employed to procure a purchaser for a farm has, in the absence of any provisions it the contract of employment, a reasonable time in which to procure a purchaser, unless his authority is in the meantime revoked.

Ed Note-For cases in point, see vol. 8, Cent. Dig. Brokers, § 10.]

6. SAME REASONABLE TIME-WHAT CONSTITUTES.

In determining what constitutes a reasonable time within which a real estate broker Eplyed to procure a purchaser for a farm mast procure a purchaser, in order to be entitled to his commissions, the facts and circumstances must be considered.

7. SAME-EMPLOYMENT-CONTINUANCE-EVI

DENCE.

Where a broker who was employed in the fall of a year to procure a purchaser for a farm called the owner's attention to the employment re time in June following, and the owner rated that he remembered it, and, on being id that the broker would bring a land buyer the next day, stated that he would be at home, re was evidence tending to show that the employment of the broker continued, entitling

to his commission on producing a buyer ready, willing, and able to buy.

8. SAME-EMPLOYMENT-REVOCATION.

A real estate broker employed to procure a purchaser for a farm procured a buyer, who

agreed with the owner on the terms of sale. The buyer was given to a fixed date to purchase unless the owner sold in the meantime. Before the time fixed, the buyer told the owner that he would not buy without also procuring adjacent land, which he could not do. The owner then stated to the buyer that the matter was settled between them. On the same day the buyer told the owner that he would take the farm on the terms agreed. Held, that the broker had earned his commission, though no sale was made; the owner's statement to the buyer not constituting a revocation of the broker's authority to procure a buyer.

9. SAME-ACTION FOR COMMISSION-INSTRUC

TIONS.

In an action by a real estate broker for a commission for procuring a purchaser for a farm, who had first stated to the owner that he would not buy it, but who on the same day offered to take it on the terms agreed on, an instruction that he would have no right to return and offer to take the farm, for the mere purpose of collecting a commission from defendant, was erroneous, as suggesting a conspiracy between the broker and the purchaser.

Appeal from Circuit Court, Scotland County; E. R. McKee, Judge.

Action by Thomas J. Sallee and another against Wesley McMurry. From a judgment for defendant, plaintiffs appeal. Reversed.

From a careful reading of the record in this case, we become impressed at once that the verdict is for the wrong party. The suit is that of real estate brokers for their commissions. The principal facts are detailed in evidence substantially the same by both plaintiffs and defendant. They are as follows: The defendant owned a farm of 267.40 acres not far from Rutledge, in Scotland county. Some time in the summer or fall of 1901 he agreed verbally with plaintiff Sallee, who was a liveryman, that, if Sallee would procure for him a buyer for said farm at a price of $40 per acre, he would pay him 5 per cent. commission on the purchase price. About the 1st of the following June, 1902, Sallee interested his coplaintiff, Ferris, in the matter, and proposed that if Ferris, who had recently moved to Scotland county from Rock Falls, Ill., would assist him in procuring a buyer from among some of his former Illinois neighbors or elsewhere for said farm, he would divide the commission on the sale. Ferris assented thereto, and a few days later brought to Sallee a Mr. Jamison, of Rock Falls, Ill., a prospective buyer. This was on Saturday. Sallee called up the defendant over the telephone, who was then at his farm, and reminded him of their verbal contract or conversation had the fall before with regard to the sale of the land, and asked him if he still desired to sell. His answer was to the effect that he guessed Sallee then told him that he would bring some men out to see the land the next day. Defendant answered that he would be at home. On Sunday morning, Sallee, his coplaintiff, Ferris, Mr. Jamison, the prospective buyer, and Mr. Hiens, also of Rock Falls, Ill., a former neighbor of Jamison and Ferris, drove to defendant's farm, where defendant

So.

met them and showed them around the place. While they were out on the farm, defendant and plaintiff Sallee separated themselves for a few moments from the remainder of the party, whereupon the following conversation between plaintiff and defendant, as testified to by defendant, took place: "He asked me then, 'Don't you remember the conversation we had last fall at Rutledge?' 'What was the conversation? I asked. 'You would give me 5 per cent. to bring you a buyer at $40 an acre.' And I told him I remembered it. We had gotten down within probably thirty steps of the men, and he says: 'Don't mention this before these fellows. I ain't known to them only as a liveryman.' And I says, 'All right.'" Upon further examination of the farm, Mr. Jamison, the prospective buyer, was informed that defendant's brother Joseph McMurry owned the adjoining farm, of 267.40 acres, and that he might possibly be induced to sell. This interested Jamison very much, as he wanted a farm about the size of these two. He had in the neigh-❘ borhood of $25,000 in cash which he desired to invest in lands. The party then went to Joseph McMurry's house. He not being at home, they decided to return to Rutledge and communicate with him the following day. On Monday morning Sallee called Joseph McMurry over the telephone. He said he would sell his farm. Thereupon the party drove a second time to the defendant's place, and found defendant plowing corn in his field. They examined both his farm and that of his brother Joseph, and Mr. Jamison practically concluded to take the farm, but he desired to go down into Carroll county with Mr. Hiens and look a little further. He and the McMurrys agreed, however, that if he returned by the 4th day of July he could have the farm of each at $40 per acre. A payment of $500 cash was to be made at the time of his return, and the remainder to be paid the 1st of the following March, at which time he was to have possession. The McMurrys reserved the right, however, to sell the land to any other buyer that might come along in the meantime; but, if it was not sold, Jamison might have it upon the terms stated at any time prior to July 4th. About June 25th Joseph McMurry, with whom the plaintiffs had no contract, and who is not a party to this suit, decided not to sell his lands, and so telegraphed Jamison. On that date, in the town of Rutledge, defendant and plaintiff Sallee had a conversation, in which the defendant sought to wriggle out of his commission contract, to which conversation defendant testified as follows: "Then Sallee says, 'Don't you remember the first conversation I asked you last fall if you wouldn't give me five per cent., if I would bring you a buyer at $40?' And I told him I did remember of the conversation. 'Well,' he says, 'Now you are backing out of the trade.' I says, 'I won't bind myself to sell it at $40.'" And further on he explains as

De

follows: "I told him I would not bind myself to sell it at $40; that the old man had insisted that the odd $100 be knocked off, to make it an even price of $21,000 on both places, and that, if I had to do that—if I should give them a contract of 5 per cent. commission, and make a trade with the old man, and knocked that off-would they be willing to take $444 out of the 5 per cent., and they said they wouldn't." That Sallee advised him to stand pat at $40-not knock off anything-and that old man Jamison would take the land at that price. On June 28th or 30th Mr. Jamison returned from Illinois to consummate the deal for the land. He and plaintiffs, Sallee and Ferris, drove to defendant's farm, where they met defendant and his brother Joseph. Mr. Jamison informed them that he had come to take the land and make payment thereon. Joseph McMurry told him he had concluded not to sell. He and Jamison had some conversation, and the matter was dropped so far as Joseph McMurry's farm was concerned. fendant testified that he then asked Mr. Jamison if he wanted his farm without that of his brother, to which Mr. Jamison answered that he did not; that he wanted both or none at all. Whereupon defendant claims he said to Jamison: "This ends the matter between you and me, then." This conversation is alleged to have occurred at his wood pile, in the presence of plaintiffs. Both plaintiffs and Jamison say it did not occur at all. Jamison, however, asked permission to drive down on his farm and look at the drainage, which was granted, and defendant here testified that he said: "You may go and look for information, but not to buy." Both plaintiffs and Jamison say no such remark was made, and defendant's hired hand, who was present, did not hear it. Thereupon Jamison, the two plaintiffs, and Joseph McMurry drove down and looked at the bottom lands. While looking at the bottom lands, and driving back to the wood pile, where defendant was at work, Sallee and Ferris persuaded Jamison that he could take defendant's farm at the agreed price as an investment, and make some money out of it. Jamison concluded that it was the better piece of land, of the two farms, and that he would take it. They returned to the wood pile and notified defendant that Mr. Jamison had concluded to take his farm at the agreed price, and Mr. Jamison took from his pocket a bank draft for $1,000; saying that he was to pay only $500 on the one farm, but, as the brother had backed out, he would pay the entire amount on this farm. The defendant took the draft and looked at it, saying he supposed it was all right, but that he would not sell his farm. Thereupon Sallee, the agent, called his attention to the several conversations whereby he was to have 5 per cent. commission for producing a buyer which conversation defendant admitted, but said, "You are not a real estate man-you

are a liveryman-and I will not pay you any commissions," and refused to pay commissions on the sale. Defendant testified to the following conversation which occurred between himself and plaintiff Ferris just prior to Jamison driving down on the bottom to look at the drainage: "Mr. Ferris says: You remember the conversation you had with Mr. Sallee last fall, and you remember you said you would not raise the price on Mr. Jamison before the 4th day of July. Now you refuse to sell.' I told him I did not refuse to sell." So we see up to this time there was no refusal to sell, according to defendant's testimony. Defendant then tested that, as the party went to leave him, be opened the gate, and, as they drove off, "Tom Sallee says, 'I have produced a buyer.' I says: You might not understand it, and made it as plain as I could when you left here before [meaning when they parted to drive on the bottom and look at the drainage] that you could not look at this place to buy,' and says, 'If you did not understand it then, I want you to understand it distinctly that if you ever have had authority to sell this farm to any one, or to price it to anybody, you never shall have authority to.' He says, Now you withdraw it?' I says, 'Yes.' The old man says, 'I understand it.' I says, Some people have got pretty thick heads, that you can't beat anything into them.'' All of the evidence shows that Mr. Jamison had at the time $18,000 in the bank, on deposit, and was ready, able, and willing to buy this farm, and was prevented from so doing by the flat refusal of the defendant to sell

Defendant's contentions are that, while be agreed to pay Sallee a commission in a Conversation had the summer before, the contract had expired, and that it had never been renewed by him. He was therefore not obligated to pay; and, second, that he revoked the authority of the agent by his statement to Mr. Jamison in the presence of the agent, upon Jamison saying to him that be did not want one farm without the other: "That settles it, Mr. Jamison, between you and me. That is what I wanted to know"-and by saying to Jamison and the others that they might look at the farm for information, but not to buy, when Jamson drove to the bottom to look at the drainage, which statements plaintiffs and Jamison say he did not make.

The court instructed the jury on the part of the plaintiffs that if the jury believed from the evidence that defendant contracted to pay plaintiffs 5 per cent. commissions for producing a buyer for his farm at $40 per acre, and that plaintiffs produced a buyer before said authority was revoked by defendant, McMurry, and within a reasonable time, while said contract was still in force, and such buyer was ready, able, and willing to buy, and defendant refused to sell, then the finding should be for the plaintiffs. The

court refused the following instructions asked by plaintiff, to the refusal of which exceptions were saved, and complaint thereof is made here:

"(7) Gentlemen, if you believe from the evidence in this cause that the defendant contracted and agreed with the plaintiff Sallee that, if he would sell his farm at $40 per acre, he would give him a commission of 5 per cent. on the amount of the sale, and if you believe that said Sallee did so furnish a purchaser ready, able, and willing to take said land at said price, then it was not necessary that said Sallee should negotiate the terms of said sale; it was sufficient that he produce a man who was able and willing to comply with the terms that the defendant imposed; and, if you find that he absolutely refused to make the sale, then said Sallee was entitled to his commission, and your findings should be for the plaintiffs.

"(8) Gentlemen, if you believe from the evidence in this cause that the defendant, McMurry, contracted and agreed with the plaintiff Sallee that, if he would sell his land for the price and sum of $40 per acre, he would pay to him the sum of 5 per cent. commission on the total amount of the sale, and if you further believe that the plaintiff Sallee produced to him a purchaser, or was the cause of one being produced, who was ready, able, and willing to take the land at said price, but the defendant, McMurry, refused to perfect said sale, and if you further believe that this coplaintiff is the one-half owner of the said commission, then you should find for the plaintiffs, as though said sale had been made the full amount of said 5 per cent. commission on said purchase price.

"(9) It was not necessary, gentlemen, that the plaintiff Sallee should have negotiated the terms of said sale with the purchaser, nor need he actually produce the purchaser in person, if he was the procuring cause of the purchaser being produced to the defendant; and, if you believe the purchaser so produced was able and willing to take the land and pay for it at the price and sum of $40 per acre, then said Sallee was entitled to commission, provided defendant contracted with him as set forth in above instructions."

There was some evidence on the part of the defendant to the effect that one Murray first told Jamison of defendant's farm, and that he was thinking of going to see it when taken in charge by the plaintiffs, and negotiations commenced by them. The above instructions 8 and 9 were predicated upon this evidence, and they, as well as No. 7, should have been given.

The following instruction (No. 10, refused) should have been given:

"(10) Gentlemen, if you believe from the evidence in the cause that the defendant, McMurry, employed the plaintiff Sallee to sell his farm for him, and agreed with him

if he would sell it for $40 per acre he would | 263; Finley v. Dyer, 79 Mo. App. 604; Huggive him a commission of five per cent. on the total amount of the sale, then said Sallee would have been entitled to reasonable notice, taking into consideration the condition and situation of the parties, of the revocation of said agency, and it would be too late for the defendant, McMurry, to revoke it or terminate it after the negotiations with the purchaser had begun, which were finally consummated, if you so believe they were." It was error to give defendant's instructions Nos. 11 and 12, as follows:

"(11) The jury are instructed that even though they may believe from the evidence in the cause that defendant, McMurry, agreed with plaintiff Sallee to pay him 5 per cent. commission for producing a purchaser for his farm, and even though you shall further believe that while said contract was existing said Sallee produced witness Jamison, who was able to purchase and pay for said farm, still if you shall further believe from the evidence that said Jamison told the defendant that he would not take his farm, without the farm of the other brother went with it, and that thereupon the defendant informed Jamison and the plaintiffs, or either of them, in the presence of the others, that the trade was off between them and that the farm was not for sale, then your verdict should be for the defendant, even though you may believe that within a short time said Jamison returned and offered to take the farm.

"(12) The jury is instructed that if you shall believe from evidence in the cause that on the 30th day of June, 1902, at the wood pile, Jamison informed the defendant that he would not purchase his farm without also getting Joe's farm, and left with that understanding between himself and the defendant, then Jamison and the plaintiffs were bound by such understanding, and he would have no right to return and offer to take defendant's farm for the mere purpose of collecting commissions off the defendant."

These two instructions treated the matter of Jamison's stating that he did not want one of the farms without the other as having terminated the agency to sell the lands, and for this reason are erroneous.

The trial resulted in a verdict for the defendant. Plaintiffs appeal here for review.

Smoot, Boyd & Smoot, for appellants. J. M. Jayne and Mudd & Pettingill, for respondent.

NORTONI, J. (after stating the facts). It is the law that a real estate broker earns his commission when he produces and introduces to his principal a buyer who is able, ready, and willing to buy upon the terms at which the broker is authorized to sell. Brown v. Smith (Mo. App.) 87 S. W. 556; Goodson v. Embleton, 106 Mo. App. 77, 80 S. W. 22; Finch v. Trust Co., 92 Mo. App.

gins v. Hearne, 74 Mo. App. 86; Chipley v. Leathe, 60 Mo. App. 15; Hayden v. Grillo's Adm'r, 42 Mo. App. 1; Id., 35 Mo. App. 647; Id., 26 Mo. App. 289; Gelatt v. Ridge, 117 Mo. 553, 23 S. W. 882, 38 Am. St. Rep. 683. And in cases where the principal refuses to sell upon the broker having produced and introduced to him a buyer who is ready, able, and willing to purchase upon the terms proposed, the law regards the sale as made, in so far as the agent and his commissions are concerned, upon the theory that the law does not require that to be done by the agent which is either unreasonable or impossible. But having produced a qualified buyer, he has fully performed on his part, as it is not within his power to force the proprietor to convey the land, and in such case the law declares the commissions earned and the sale made on the part of the broker. Brown v. Smith (Mo. App.) 87 S. W. 556; Goodson v. Embleton, 106 Mo. App. 77, 80 S. W. 22; Real Estate Co. v. Ruhlman, 68 Mo. App. 503; Wright & Orison v. Brown, Id. 507; Reeves v. Vette, 62 Mo. App. 440; Hart v. Hopson, 52 Mo. App. 177; Stinde v. Blesch, 42 Mo. App. 578; Hayden v. Grillo's Adm'r, Id. 1; Harwood v. Diemer, 41 Mo. App. 48; Gelatt v. Ridge, 117 Mo. 553, 23 S. W. 882, 38 Am. St. Rep. 683.

It is also well settled that the agent is entitled to his commissions if he is the procuring cause of the negotiations which resulted in the sale, even though the agent does nothing more than bring the parties together for the purpose of negotiating, and the negotiations are afterwards conducted and concluded by the principal in person. Gelatt v. Ridge, 117 Mo. 553, 23 S. W. 882, 38 Am. St. Rep. 683; Timberman v. Craddock, 70 Mo. 638; Tyler v. Parr, 52 Mo. 249; Bell v. Kaiser, 50 Mo. 150; Wright & Orison v. Brown, 68 Mo. App. 577; Brennan v. Roach, 47 Mo. App. 290.

In the case at bar the contract of employment contained nothing as to the terms upon which the sale was to be made by Sallee, and, of course, in the absence of proof, the law would presume the terms to be cash. But be this as it may, the principal can fix the terms to suit himself upon meeting the purchaser produced by the broker, and can even vary the terms, if he sees fit, that were originally provided between himself and the broker, and, upon doing so, would be obligated to pay the broker commissions upon his failure thereafter to carry out the contract in accordance with the terms agreed upon between himself and the prospective buyer. Wright & Orison v. Brown, 68 Mo. App. 577; Brennan v. Roach, 47 Mo. App. 290; Jones v. Berry, 37 Mo. App. 125; Goffe v. Gibson, 18 Mo. App. 1.

In the case at bar the brokers produced the purchaser, and he and the respondent agreed upon the terms of purchase, upon

which Jamison could have the farm at any time before the 4th day of July, provided regpondent did not sell it to other parties. Jamison returned in due time and offered to take the place in accordance with the terms theretofore agreed upon, and the sale was defeated by no other cause than the flat refusal of the defendant to convey. Upon this state of facts, appellants would be entitied to recover their commissions if the jury find that they were employed as they alleged, and of which employment there seems but little or no doubt, unless the agency had been terminated before respondent's refusal to consummate the sale. If the appellants

were employed as agents or brokers for the sale of the land, as it seems almost beyond controversy they were, then the employment would continue for a reasonable time, at least, or until revoked. In a contract of employment to sell real estate, the broker is universally entitled, in the absence of the revocation of his authority, or a time limit to his employment, to a reasonable time in which to find a purchaser. Henderson v. Vincent, 84 Ala. 99-100, 4 South. 180; Biddison v. Johnson, 50 Ill. App. 173; Lane v. Albright, 49 Ind. 275; Stedman v. Richardson, 100 Ky. 79, 37 S. W. 259; Carroll v. Pettit, 67 Hun, 418, 22 N. Y. Supp. 250; Sibbald v. Iron Co., 83 N. Y. 384, 38 Am. Rep. 441; Leslie v. Boyd, 124 Ind. 320, 24 N. E. 887; 9 Cyc 613; 1 Am. & Eng. Ency. Law (2d Ed.) 1220. "In deciding whether an undertaking has been performed within reasonable time, the material difficulties and hazards attending it, and the amount of diligence used and frustrated attempts at performance, should be considered, and that it is a question of fact for the jury when it depends upon facts extrinsic to the contract and which are matters in dispute." 9 Cyc. 613.

In determining what would be a reasonable time for complying with a contract of this kind, it must be kept in mind that farms are slow in selling. Purchasers are not found every day, and the facts and circumstances surrounding the transaction usually are such that some little time is required in which to fnd a buyer and then work up a sale. In short, the facts and circumstances of each case should be considered in determining what is a reasonable time therein. Howe v. Bristow, 65 Mo. App. 624. At any rate, it is in evidence in this case, and it seems berond dispute, as both parties testified substantially the same about the conversation on the evening before the broker drove the purchaser to respondent's farm, that Sallee called the attention of respondent to the conPersation about the sale of the farm which be had had the fall before. Defendant said be remembered it, and, upon being told that he would bring some land buyers out the next day, said he would be at home, all of which tends to show that the contract in this case was then being acted upon by both parties; and on the following day, on de

58 S.W.-11

fendant's farm, when Sallee related the conversation of the fall before to respondent, he did not repudiate any part of it. All of the conversation tends to show that, if a contract existed at all, they were then acting upon it. If the contract of agency existed, there is no doubt but what the respondent had the right to terminate it, as, where no time for the continuance of a contract of this kind is fixed, either party is at liberty to terminate it at will, subject only to the requirements of good faith and reasonable notice. Sibbald v. Iron Works, 83 N. Y. 378, 38 Am. Rep. 441; Jones v. Berry, 37 Mo. App. 125; Gaty v. Sack, 19 Mo. App. 470.

The law is well settled, however, by numerous adjudicated cases, that the principal will not be permitted to terminate the agency without cause in the very midst of negotiations which the agent has brought about by the expenditure of time, labor, or money, to which he has been encouraged and moved by the principal. The principal is no more permitted to terminate the agency in the midst of negotiations, and thus defeat the agent's compensation by refusing to convey, upon the ground that he has terminated the agency, while the negotiations were pending in their last stages, than he is permitted to terminate the agency under like circumstances and defeat the agent's compensation when he takes the negotiations out of the agent's hands and completes the sale on his own account. The policy of the law is the same in either case to protect the agent and see that he is compensated for the services he has rendered. It would be highly unjust, indeed, to permit the employment of agents, and their encouragement to work and expend money and time in the service of their principals, and then permit the principals to defeat them of their expected compensation by terminating the agency, when the purchaser was himself almost ready to close the bargain. 1 Amer. & Eng. Ency. Law (3d Ed.) 1217, says: "Of course, if the authority has been executed, it cannot then be revoked." And again, at page 1217, says: "The agent cannot be deprived of the fruits of his labors, and, when a sale is virtually effected by a duly authorized agent, if the principal takes the matter into his own hands, he is still liable for the commission to his agent, since the latter is the procuring cause." Knox v. Parker, 2 Wash. 34, 25 Pac. 909; Sibbald v. Iron Co., 83 N. Y. 378, 38 Am. Rep. 441; Green v. Cole, 103 Mo. 70, 15 S. W. 317; Glover v. Henderson, 120 Mo. 367, 25 S. W. 175, 41 Am. St. Rep. 695; Blumenthal v. Goodall, 89 Cal. 251, 26 Pac. 906; Livezy v. Miller, 61 Md. 336. In the case last cited the Supreme Court of Maryland said: "It is also the established law that after negotiations begun through a broker's intervention, having virtually culminated in a sale, the agent cannot be discharged, so as to deprive him of his commissions. If the agent is the procuring cause of the sale made, he will be

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