Maxwell v. Rositzky

Missouri Court of Appeals

Maxwell v. Rositzky

152 S.W. 376, 167 Mo. App. 573, 1912 Mo. App. LEXIS 685

DecidedDecember 31, 1912

StatusPublished

This text of 152 S.W. 376 (Maxwell v. Rositzky) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Maxwell v. Rositzky, 152 S.W. 376, 167 Mo. App. 573, 1912 Mo. App. LEXIS 685 (Mo. Ct. App. 1912).

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Opinion

ELLISON, J.

Plaintiff is a real estate broker and has brought this action to recover commissions he alleges to be due him for making a sale of defendant’s property. The judgment was for the plaintiff.

It appears that defendant desired to dispose of his residence in St. Joseph and that he put'it in plaintiff’s [575]*575hands for sale for $7000' net to him, and that defendant should receive as his commission all over that sum he should obtain for the property. It is stated that nothing was said about the sale being for cash, but we will consider that it was to be so, in our disposition, of the case.

Shortly afterwards plaintiff came upon the man who finally purchased. He priced the property to him at $7500, and introduced him to defendant. He took him to the house and introduced him to defendant’s wife, the latter saying she would show him through. The sale was not consummated for near three weeks, defendant frequently asking plaintiff how he was getting on with it. At one time plaintiff told defendant that if the purchaser got ready to close with him at $7500, for him to take the money, or whatever he paid to close the sale. Defendant said he would do it. In the end defendant closed with the purchaser at $7500, subject to a deed of trust for $2300, and $500 to be paid in cash and $1800 more when abstract and deed were delivered, the. balance to be paid in four years at six per cent interest, secured on the «.property. A written contract to this effect was drawn up by plaintiff and defendant signed it. Then it seems defendant refused further connection with plaintiff.

Though plaintiff was to sell for cash and he procured a purchaser, introduced him to defendant, the latter accepting him as having been found by plaintiff and getting the latter to write the contract, the mere fact that the sale as finally agreed upon was on different terms than cash would not prevent plaintiff’s right to his commission. There was no failure to produce a purchaser suitable to defendant. There was no breaking of connection — principal and agent — between defendant and plaintiff on the ground that he did no.t produce a purchaser for cash. Defendant merely accepted plaintiff’s services and closed the sale for the [576]*576price made by plaintiff, bnt on terms which he concluded would suit him. Sallee v. McMurry, 113 Mo. App. 253, 265; Jones v. Berry, 37 Mo. App. 125.

It is true that defendant in listing his property with plaintiff had a right to reserve the privilege of selling to any one himself; but he did not have the right to absorb the customer produced by plaintiff, treat him as a discovery of his own, while at the same time accepting plaintiff’s services.

There is no objection to the instructions. There is no room to question the jury’s understanding of the issues. The verdict was for the right party.

The judgment is affirmed.

All concur.

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ELLISON, J.

Plaintiff is a real estate broker and has brought this action to recover commissions he alleges to be due him for making a sale of defendant’s property. The judgment was for the plaintiff.

It appears that defendant desired to dispose of his residence in St. Joseph and that he put'it in plaintiff’s [575]*575hands for sale for $7000' net to him, and that defendant should receive as his commission all over that sum he should obtain for the property. It is stated that nothing was said about the sale being for cash, but we will consider that it was to be so, in our disposition, of the case.

Shortly afterwards plaintiff came upon the man who finally purchased. He priced the property to him at $7500, and introduced him to defendant. He took him to the house and introduced him to defendant’s wife, the latter saying she would show him through. The sale was not consummated for near three weeks, defendant frequently asking plaintiff how he was getting on with it. At one time plaintiff told defendant that if the purchaser got ready to close with him at $7500, for him to take the money, or whatever he paid to close the sale. Defendant said he would do it. In the end defendant closed with the purchaser at $7500, subject to a deed of trust for $2300, and $500 to be paid in cash and $1800 more when abstract and deed were delivered, the. balance to be paid in four years at six per cent interest, secured on the «.property. A written contract to this effect was drawn up by plaintiff and defendant signed it. Then it seems defendant refused further connection with plaintiff.

Though plaintiff was to sell for cash and he procured a purchaser, introduced him to defendant, the latter accepting him as having been found by plaintiff and getting the latter to write the contract, the mere fact that the sale as finally agreed upon was on different terms than cash would not prevent plaintiff’s right to his commission. There was no failure to produce a purchaser suitable to defendant. There was no breaking of connection — principal and agent — between defendant and plaintiff on the ground that he did no.t produce a purchaser for cash. Defendant merely accepted plaintiff’s services and closed the sale for the [576]*576price made by plaintiff, bnt on terms which he concluded would suit him. Sallee v. McMurry, 113 Mo. App. 253, 265; Jones v. Berry, 37 Mo. App. 125.

It is true that defendant in listing his property with plaintiff had a right to reserve the privilege of selling to any one himself; but he did not have the right to absorb the customer produced by plaintiff, treat him as a discovery of his own, while at the same time accepting plaintiff’s services.

There is no objection to the instructions. There is no room to question the jury’s understanding of the issues. The verdict was for the right party.

The judgment is affirmed.

All concur.

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152 S.W. 376, 167 Mo. App. 573, 1912 Mo. App. LEXIS 685, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maxwell-v-rositzky-moctapp-1912.

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