« AnteriorContinuar »
SALLEE et al. v. MCMURRY.
A real estate broker earns his commission
Ed Note-For cases in point, see vol. 8,
A real estate broker is entitled to his com-
. Dig. Brokers, 88 69, 74.) & SAUE-FAJLUBE
TO COMPLETE CONTRACT
his commission, though the
Where a real estate broker employed to
. Dig. Brokers, 88 81, 94–96.]
4, broker employed to procure a purchaser
SAME-REASONABLE THE-WHAT CONSTI-
In determining what constitutes a reason* procure a purchaser, in order to be en
a purchaser for a farm Wildd to his commissions, the facts and circum1. SAME-EMPLOYMENT - CONTINUANCE-Evi40 of a year to procure a purchaser for a farm
Where a broker who was employed in the led the owner's attention to the employment w that the broker would bring a land buyer
ed that he remembered it, and, on being je nert day, stated that he would be at home, up was evidence tending to show that the teployment of the broker continued, entitling SAVE--EMPLOYMENT_REVOCATION.
producing a buyer
to buy. A real estate broker
employed to procure Procured a buyer, who
agreed with the owner on the terms of sale.
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 hiin 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 so. 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 honie.
On Sunday morning, Sallee, his coplaintiff, Ferris, Mr. Jamison, the prospective buyer, and Mr. Hiens, also of Rock Falls, IlI., a former neighbor of Jamison and Ferris, drove to defendant's farm, where defendant
. Dig. Brokers, Š 10.)
esplosed to procure
Santes must be considered.
Dio bis commission
, willing, and able
grechaser for a farın
met them and showed them around the place. follows: "I told him I would not bind my site to While they were out on the farm, defendant self to sell it at $40; that the old man had and plaintiff Sallee separated themselves for insisted that the odd $100 be knocked off, to a few moments from the remainder of the make it an even price of $21,000 on both party, whereupon the following conversation places, and that, if I had to do that-if I between plaintiff and defendant, as testified should give them a contract of 5 per cent. to by defendant, took place: "He asked me commission, and make a trade with the old then, 'Don't you remember the conversation man, and knocked that off-would they be we had last fall at Rutledge?' 'What was willing to take $144 out of the 5 per cent., the conversation? I asked. “You would give and they said they wouldn't.” That Sallee me 5 per cent. to bring you a buyer at $40 advised him to stand pat at $40_not knock an acre.' And I told him I remembered it. off anything—and that old man Jamison We had gotten down within probably thirty would take the land at that price. On June
1973 to steps of the men, and he says: “Don't men- 28th or 30th Mr. Jamison returned from Illi. 3. &tion this before these fellows. I ain't known nois to consummate the deal for the land.
Mai to them only as a liveryman.' And I says, He and plaintiffs, Sallee and Ferris, drove * Tee :) 'All right.'" Upon further examination of to defendant's farm, where they met de bed as the the farm, Mr. Jamison, the prospective buy- fendant and his brother Joseph. Mr. Jam- iste poder er, was informed that defendant's brother ison informed them that he had come to take care Joseph McMurry owned the adjoining farm, the land and make payment thereon. Joseph of 267.40 acres, and that he might possibly McMurry told him be had concluded not to be induced to sell. This interested Jami- sell. He and Jamison had some conversa: 0 2: : son very much, as he wanted a farm about | tion, and the matter was dropped so far as the thing the size of these two. He had in the neigh- | Joseph McMurry's farm was concerned. Deborhood of $25,000 in cash which he desired fendant testified that he then asked Mr. * to invest in lands. The party then went to Jamison if he wanted his farm without that naty Joseph McMurry's house. He not being at of his brother, to which Mr. Jamison an. Sopii home, they decided to return to Rutledge swered that he did not; that he wanted both zosnity to and communicate with him the following day. or none at all. Whereupon lefendant claims 3Isats On Monday morning Sallee called Joseph he said to Jamison: “This ends the matter odpated McMurry over the telephone. He said he between you and me, then." This conversawould sell his farm. Thereupon the party tion is alleged to have occurred at his wood drove a second time to the defendant's place, pile, in the presence of plaintiffs. Both plain- stirs thao and found defendant plowing corn in his tiffs and Jamison say it did not occur at all. field. They examined both his farm and that Jamison, however, asked permission to drive of his brother Joseph, and Mr. Jamison prac- down on his farm and look at the drainage, tically concluded to take the farm, but he which was granted, and defendant bere tesdesired to go down into Carroll county with tified that he said: "You may go and look Mr. Hiens and look a little further. He and for information, but not to buy." Both the McMurrys agreed, however, that if he plaintiffs and Jamison say no such remark returned by the 4th day of July he could was made, and defendant's hired hand, who have the farm of each at $40 per acre. A was present, did not hear it. Thereupon payment of $500 cash was to be made at the Jamison, the two plaintiffs, and Joseph Mctime of his return, and the remainder to be Murry drove down and looked at the bottom paid the 1st of the following March, at which lands. While looking at the bottom lands, time he was to have possession. The Mc- and driving back to the wood pile, where Murrys reserved the right, however, to sell defendant was at work, Sallee and Ferris the land to any other buyer that might come persuaded Jamison that he could take dealong in the meantime; but, if it was not fendant's farm at the agreed price as an insold, Jamison might have it upon the terms vestment, and make some money out of it. stated at any time prior to July 4th. About Jamison concluded that it was the better June 25th Joseph McMurry, with whom the piece of land, of the two farms, and that he plaintiffs had no contract, and who is not a would take it. They returned to the wood party to this suit, decided not to sell his pile and notified defendant that Mr. Jamison lands, and so telegraphed Jamison. On that had concluded to take his farm at the agreed date, in the town of Rutledge, defendant price, and Mr. Jamison took from his pocket and plaintiff Sallee had a conversation, in a bank draft for $1,000; saying that he was which the defendant sought to wriggle out to pay only $500 on the one farm, but, as the of his commission contract, to which con- brother had backed out, he would pay the versation defendant testified follows: entire amount on this farm. The defendant "Then Sallee says, "Don't you remember the took the draft and looked at it, saying he first conversation I asked you last fall if supposed it was all right, but that he would you wouldn't give me five per cent., if I not sell his farm. Thereupon Sallee, the would bring you a buyer at $10?' And I agent, called his attention to the several contold him I did remember of the conversation. versations whereby he was to bave 5 per 'Well,' he says, 'Now you are backing out of cent. commission for producing a buyer, the trade. I says, 'I won't bind myself to which conversation defendant admitted, but sell it at $40.'" And further on he explains as said, "You are not a real estate man-you
cid man says,
are a liveryman—and I will not pay you any court refused the following instructions ask-
"Mr. Ferris says: contracted and agreed with the plaintiff SalTou remember the conversation you had lee that, if he would sell his farm at $40 per with Mr. Sallee last fall, and you remember acre, he would give him a commission of 5 you said you would not raise the price on Mr. per cent, on the amount of the sale, and if Jamison before the 4th day of July. Now you believe that said Sallee did so furnish a FOC refuse to sell.' I told him I did not re- purchaser ready, able, and willing to take fose to sell.” So we see up to this time said land at said price, then it was not necthere was no refusal to sell, according to essary that said Sallee should negotiate the dependant's testimony. Defendant then tes- terms of said sale; it was sufficient that he tied that, as the party went to leave him, produce a man who was able and willing to be opened the gate, and, as they drove off, comply with the terms that the defendant Tom Sallee says, 'I have produced a buyer.' imposed; and, if you find that he absolutely I says: "You might not understand it, and refused to make the sale, then said Sallee made it as plain as I could when you left was entitled to his commission, and your bere before (mea ning when they parted to findings should be for the plaintiffs. drive on the bottom and look at the drainage] "(8) Gentlemen, if you believe from the that you could not look at this place to buy,' evidence in this cause that the defendant, and says, 'If you did not understand it then, McMurry, contracted and agreed with the I want you to understand it distinctly that plaintiff Sallee that, if he would sell his If you ever have had authority to sell this land for the price and sum of $10 per acre, farm to any one, or to price it to anybody, he would pay to him the sum of 5 per cent. you never shall have authority to.' He says,
commission on the total amount of the sale, Now you withdraw it?' I says, 'Yes.' The and if you further believe that the plaintiff
'I understand it.' I says, Sallee produced to him a purchaser, or was Some people have got pretty thick heads, the cause of one being produced, who was that you can't beat anything into them.'” ready, able, and willing to take the land at All of the evidence shows that Mr. Jamison said price, but the defendant, McMurry, rebad at the time $18,000 in the bank, on de- fused to perfect said sale, and if you further posit, and was ready, able, and willing to believe that this coplaintiff is the one-half buy this farm, and was prevented from so owner of the said commission, then you doing by the flat refusal of the defendant to should find for the plaintiffs, as though said
sale had been made the full amount of said Delendant's contentions are that, while 5 per cent. commission on said purchase be agreed to pay Sallee a commission in a
price. erzrersation had the summer before, the “(9) It was not necessary, gentlemen, that ontract had expired, and that it bad never the plaintiff Sallee should have negotiated been renewed by him. He was therefore the terms of said sale with the purchaser, not obligated to pay; and, second, that he nor need he actually produce the purchaser Teroked the authority of the agent by his
in person, if he was the procuring cause of statement to Mr. Jamison in the presence of the agent, upon Jamison saying to him that
the purchaser being produced to the defend
ant; and, if you believe the purchaser so otber: "That settles it, Mr. Jamison, beone farm without the produced was able and willing to take the
land and pay for it at the price and sum of That is what I wanted $40 per acre, then said Sallee was entitled the others that they might look at the farm saying to Jamison and to commission, provided defendant contract
ed with him as set forth in above instrucfor information, but not to buy, when Jam- tions." drainage, which statements plaintiffs and
bottom to look at the There was some evidence on the part of larison say be did not make.
the defendant to the effect that one Murray
first told Jamison of defendant's farm, and The court instructed the jury on the part from the evidence that defendant contractthe plaintiffs that if the jury believed
that he was thinking of going to see it when
taken in charge by the plaintiffs, and negoto pas plaintiffs 5 per cent. commissions
tiations commenced by them. The above for producing a buyer for his farm at $40
instructions 8 and 9 were predicated upon per acre, and that plain tiffs produced a buy
this evidence, and they, as well as No. 7, a before said authority was revoked by de
should have been given. fendant, Mellurry, and within a reasonable Home, while said contract was still in force,
The following instruction (No. 10, refused)
should have been given: la inding should be for the plaintiffs. The a boy, and defendant refused to sell, then
"(10) Gentlemen, if you believe from the
McMurry, employed the plaintiff Sallee to
be did not want
tween you and me to know"—and by
1900 drove to the
and such buyer was
if he would sell it for $10 per acre he would , 263; Finley v. Dyer, 79 Mo. App. 604; Huggive him a commission of five per cent. on gins v. Hearne, 74 Mo. App. 86; Chipley v. the total amount of the sale, then said Sal- Leathe, 60 Mo. App. 15; Hayden v. Grillo's lee would have been entitled to reasonable Adm'r, 42 Mo. App. 1; Id., 35 Mo. App. notice, taking into consideration the condi- 647; Id., 26 Mo. App. 289; Gelatt v. Ridge, tion and situation of the parties, of the rev- 117 Mo. 553, 23 S. W. 882, 38 Am, St. Rep. ocation of said agency, and it would be too 683. And in cases where the principal relate for the defendant, McMurry, to revoke fuses to sell upon the broker having proit or terminate it after the negotiations with duced and introduced to him a buyer who is the purchaser had begun, which were finally ready, able, and willing to purchase upon consummated, if you so believe they were." the terms proposed, the law regards the
It was error to give defendant's instruc- sale as made, in so far as the agent and his tions Nos, 11 and 12, as follows:
commissions are concerned, upon the theory "(11) The jury are instructed that even that the law does not require that to be though they may believe from the evidence done by the agent which is either unreasonin the cause that defendant, McMurry, able or impossible. But having produced a agreed with plaintiff Sallee to pay him 5 qualified buyer, he has fully performed on per cent, commission for producing a pur- his part, as it is not within his power to chaser for his farm, and even though you force the proprietor to convey the land, and shall further believe that while said contract in such case the law declares the commiswas existing said Sallee produced witness sions earned and the sale made on the part Jamison, who was able to purchase and pay of the broker. Brown v. Smith (Mo. App.) for said farm, still if you shall further be- 87 S. W. 556; Goodson V. Embleton, 106 lieve from the evidence that said Jamison Mo. App. 77, 80 S. W. 22; Real Estate Co. told the defendant that he would not take V. Ruhlman, 68 Mo. App. 503; Wright & his farm, without the farm of the other Orison v. Brown, Id. 507; Reeves v. Vette, brother went with it, and that thereupon 62 Mo. App. 410; Hart v. Hopson, 52 Mo. the defendant informed Jamison and the App. 177; Stinde v. Blesch, 42 Mo. App. plaintiffs, or either of them, in the presence 578; Hayden v. Grillo's Adm'r, Id. 1; Harof the others, that the trade was off be- wood v. Diemer, 41 Mo. App. 48; Gelatt v. tween them and that the farm was not for Ridge, 117 Mo. 553, 23 S. W. 882, 38 Am. St. sale, then your verdict should be for the de- Rep. 683. fendant, even though you may believe that It is also well settled that the agent is enwithin a short time said Jamison returned titled to his commissions if he is the proand offered to take the farm.
curing cause of the negotiations which re“(12) The jury is instructed that if you shall sulted in the sale, even though the agent believe from evidence in the cause that on does nothing more than bring the parties tothe 30th day of June, 1902, at the wood pile, gether for the purpose of negotiating, and Jamison informed the defendant that he the negotiations are afterwards conducted would not purchase his farm without also and concluded by the principal in person. getting Joe's farm, and left with that un- Gelatt v. Ridge, 117 Mo. 553, 23 S. W. 882, 38 derstanding between himself and the de- Am. St. Rep. 683; Timberman v. Craddock, fendant, then 'Jamison and the plaintiffs 70 Mo. 638; Tyler v. Parr, 52 Mo. 249; Bell were bound by such understanding, and he v. Kaiser, 50 Mo. 150; Wright & Orison v. would have no right to return and offer to Brown, 68 Mo. App. 577; Brennan v. Roach. take defendant's farm for the mere purpose 47 Mo. App. 290. of collecting commissions off the defendant.” In the case at bar the contract of employ
These two instructions treated the matter ment contained nothing as to the terms upof Jamison's stating that he did not want on which the sale was to be made by Sallee, one of the farms without the other as hav- and, of course, in the absence of proof, the ing terminated the agency to sell the lands, law would presume the terms to be cash. and for this reason are erroneous.
But be this as it may, the principal can fix The trial resulted in a verdict for the de- the terms to suit himself upon meeting the fendant. Plaintiffs appeal here for review. purchaser produced by the broker, and can Smoot, Boyd & Smoot, for appellants. J.
even vary the terms, if he sees fit, that were M. Jayne and Mudd & Pettingill, for re
originally provided between himself and the spondent.
broker, and, upon doing so, would be obligated to pay the broker commissions upon
his failure thereafter to carry out the con NORTONI, J. (after stating the facts). It tract in accordance with the terms agreed is the law that a real estate broker earns upon between himself and the prospective his commission when he produces and intro- buyer. Wright & Orison v. Brown, 68 Mo. duces to his principal a buyer who is able, App. 577; Brennan v. Roach, 47 Mo. App. ready, and willing to buy upon the terms at 290; Jones v. Berry, 37 Mo. App. 125; Goffe which the broker is authorized to sell. V. Gibson, 18 Mo. App. 1. Brown v. Smith (Mo. App.) 87 S. W. 556; In the case at bar the brokers produced Goodson v. Embleton, 106 Mo. App. 77, 80 the purchaser, and he and the respondent S. W. 22; Finch v. Trust Co., 92 Mo. App. | agreed upon the terms of purchase, upon
which to find
which Jamison could have the farm at any fendant's farm, wben Sallee related the contime before the 4th day of July, provided re versation of the fall before to respondent, he goodent did not sell it to other parties. did not repudiate any part of it. All of the Jurison returned in due time and offered conversation tends to show that, if a conto take the place in accordance with the tract existed at all, they were then acting terms theretofore agreed upon, and the sale upon it. If the contract of agency existed, was defeated by no other cause than the flat there is no doubt but what the respondent refusal of the defendant to convey.
Upon had the right to terminate it, as, where no this state of facts, appellants would be enti- time for the continuance of a contract of this tied to recover their commissions if the jury kind is fixed, either party is at liberty to fnd that they were employed as they alleged, terminate it at will, subject only to the reand of which employment there seems but quirements of good faith and reasonable nolittle or no doubt, unless the agency bad been
tice. Sibbald v. Iron Works, 83 N. Y. 378, terinipated before respondent's refusal to 38 Am. Rep. 441; Jones v. Berry, 37 Mo. consummate the sale.
If the appellants App. 125; Gaty v. Sack, 19 Mo. App. 470. Fere employed as agents or brokers for the The law is well settled, however, by nukale of the land, as it seems almost beyond merous adjudicated cases, that the principal controversy they were, then the employment will not be permitted to terminate the agenwould continue for a reasonable time, at cy without cause in the very midst of negoleast, or until revoked. In a contract of em- tiations which the agent has brought about ployment to sell real estate, the broker is by the expenditure of time, labor, or money, universally entitled, in the absence of the to which he has been encouraged and movrerocation of his authority, or a time limit ed by the principal. The principal is no more to his employment, to a reasonable time in permitted to terminate the agency in the
a purchaser. Henderson v. midst of negotiations, and thus defeat the Tincent, 84 Ala. 99-100, 4 South. 180; Biddi- agent's compensation by refusing to convey, 800 V. Johnson, 50 Ill. App. 173; Lane v. Al- upon the ground that he has terminated the bright
, 49 Ind.' 275; Stedman v. Richardson, agency, while the negotiations were pending 19. Ky. 79, 37 S. W. 239; Carroll v. Pettit, in their last stages, than he is permitted to 6 Hun, 418, 22 N. Y. Supp. 250; Sibbald v. terminate the agency under like circumstanIrca Co., 83 N. Y. 384, 38 Am. Rep. 441 ; Les- ces and defeat the agent's compensation when lie F. Boyd, 124 Ind. 320, 24 N. E. 887; 9 he takes the negotiations out of the agent's Cre
, 613; 1 Am. & Eng. Ency. Law (20 Ed.) hands and completes the sale on his own ac12). "In deciding whether an undertaking count. The policy of the law is the same in has been performed within reasonable time, either case to protect the agent and see the material difficulties and hazards attend- that he is compensated for the services he ing it
, and the amount of diligence used and has rendered. It would be highly unjust, frustrated attempts at performance, should indeed, to permit the employment of agents,
and that it is a and their encouragement to work and exDestion of fact for the jury when it depends pend money and time in the service of their upon facts extrinsic to the contract and principals, and then permit the principals to which are matters in dispute.” 9 Cyc. 613.
defeat them of their expected compensation In determining what would be a reasonable by terminating the agency, when the purtime for complying with a contract of this chaser was himself almost ready to close the kind, it must be kept in mind that farms are bargain. 1 Amer. & Eng. Ency. Law (3d Ed.) every day, and the facts and circumstances Purchasers are not found 1217, says: “Of course, if the authority has
been executed, it cannot then be revoked.” surrounding the transaction usually are such And again, at page 1217, says: “The agent that some little time is required in which to cannot be deprived of the fruits of his labors, ind a buyer and then work up a sale. In sbort, the facts and circumstances of each
and, when a sale is virtually effected by a case should be considered in determining
duly authorized agent, if the principal takes what is a reasonable time therein. Howev.
the matter into his own hands, he is still lia
ble for the commission to his agent, since the Bristow, 65 Mo. App. 624. At any rate, it is latter is the procuring cause." Knox v. Parin evidence in this case, and it seems beyond dispute, as both parties testified sub
ker, 2 Wash. 34, 25 Pac. 909; Sibbald v.
Iron Co., 83 N. Y. 378, 38 Am. Rep. 441 ; in the evening before the broker drove the
about the conversation Green v. Cole, 103 Mo. 70, 15 S. W. 317; purchaser to respondent's farm, that Sallee
Glover v. Henderson, 120 Mo. 367, 25 S. W. called the attention of respondent to the con
175, 41 Am. St. Rep. 695; Blumenthal v.
Goodall, 89 Cal. 251, 26 Pac. 906; Livezy v. be had had the fall before. Defendant said
sale of the farm which Miller, 61 Md. 336. In the case last cited be remembered it, and, upon being told that
the Supreme Court of Maryland said: “It is he would bring some
also the established law that after negotiaBezt day, said he would be at home, all of which tends to show land buyers out the tions begun through a broker's intervention,
having virtually culminated in a sale, the this case was then being acted upon by both that the contract in agent cannot be discharged, so as to deprive
him of his commissions. If the agent is the following day, on de- procuring cause of the sale made, he will be
glow in selling
stantially the same
Fersation about the
parties; and on the