Murphy v. Knights of Columbus Building Co.

135 S.W. 446, 155 Mo. App. 649, 1911 Mo. App. LEXIS 270

• Court: Missouri Court of Appeals
• Decided: March 4, 1911
• Status: Published

Opinion

CAULFIELD, J.

(after stating the facts). — I. To sustain the action of the trial court in directing a verdict for defendant, defendant asserts that Rohan had no authority to bind the defendant. Respondent raises no question as to whether Rohan, as chairman, had all the authority of the real estate committe and we will deal with the case as if he had. Whether he had authority to employ the plaintiffs must depend upon whether his act in doing so fell within the scope of his authority as chairman of the real estate committee. There is no pretense that he had authority in any other capacity. The express authority and direction he received were to “go out and find an available site;” “go out and ascertain different locations and submit them to the board.” Very evidently this was not an express authority to hire a real estate agent to assist him. But it is not necessary that every authority be expressed; Rohan may have had authority to hire plaintiffs because to do so was necessary in order to achieve the main object of his agency, to “find an available site,” such hiring not having been forbidden. “It is a fundamental principle in the law of agency that every delegation of power carriers with it the power to do all those things which are reasonably necessary and proper to carry into effect the main power conferred, and which are not forbidden.” [Mechem, Law of Agency, sec. 280.] To be necessary, in this sense, the act need not be so indispensable that without it the agent can not move toward achieving the main object of the agency, or having commenced to move, must stop; but it must have been requisite for such achievement, according to the desire and intention of the principal — necessary in the sense that the main scope and object of the agency must fail unless it is done. Whether it was necessary in that sense is a question to be submitted to the jury under proper instructions, where the conclusion to be drawn from the facts and circumstances is not obvious. [St. Louis Gunning Adv. Co. v. Wanamaker & Brown, 115 Mo. App. 270, 295, 90 S. W. 737.]

Applying this method of seeking after authority to the case at bar, the question of Rohan’s authority on the ground of necessity should have been submitted to the jury. The finding of an available building site of large value in a great'city might be carried on without employing expert or other assistance, but such assistance is often availed of, and undoubtedly may be of great value. Indeed the circumstances of this case tend to indicate a necessity for it. Roha,n had evidently been seeking a long time without result before he called upon the plaintiffs, and within a few days after he called upon them, they directed his attention for the first time to the site which ultimately met the approval of his board.

So far, we have stated merely the legal presumption that a principal intends to vest an agent with power to do all incidental things necessary to the discharge of the agency. But, regardless of this presumption and regardless of the question of ratification, there was sufficient evidence to entitle plaintiffs to go to the jury upon the question of whether there was any actual intent to vest Rohan with the authority to hire plaintiffs. Rohan testified,, presumably, to the language used in appointing him as evidence of his authority. But language is only one method of expressing intent; conduct is sometimes as significant as spoken or written words. The evidence shows that plaintiffs’ letter which first called attention to the Mahler Hall property was read to the board at its regular meeting. Afterwards the board purchased that property. Thereafter, Murphy, one of the plaintiffs, exchanged letters with the officers of the defendant and appeared by previous arrangement before the full board in regular session, urging plaintiffs’ claim for compensation. At this board meeting the plaintiffs’ connection and claim seem to have been fully discussed. The whole matter hung fire for almost a year before suit was brought. But never in any of these letters or at the board meeting, which Murphy attended, was it suggested that Rohan lacked authority to employ the- plaintiffs. That thought did not seem to occur to defendant’s directors or officers. Standing unexplained, this failure for a long time and upon different occasions, to deny Rohan’s authority was significant evidence of defendant’s intent to vest him with it, and was at least sufficient to entitle plain-, tiffs to have the extent of Rohan’s authority submitted as a question of fact to the jury.

II. Defendant next contends that there was no evidence that Rohan employed the plaintiffs. We were at first inclined to sustain this contention, but have concluded that there is sufficient evidence tending to sustain plaintiffs’ theory to justify submitting the matter to the jury. Real estate agents are not confined to the business of finding purchasers for owners; they may be engaged as agents to find suitable property for those who wish to purchase, in which case, if there be no stipulation to the contrary, the presumption is they are to be compensated by the purchaser. . According to the evidence, Rohan called and ashed Murphy, one of the plaintiff firm, to go out and find a suitable site for defendant’s need, which Murphy did. And when Murphy called to see Rohan about plaintiffs’ compensation, after defendant had acquired the property, Rohan did not suggest that plaintiffs, had not been employed by him, but at first suggested that McDonald and not Murphy had brought the property to his attention and later conceded that Murphy was the first one to find the property. This evidence tended to prove that Rohan employed the plaintiffs.

III. Defendant next suggests as a ground for sustaining the action of the trial court, that the property was ultimately purchased at a price less than that -at which it was presented by the plaintiffs, and through a different agent. In this connection the plaintiffs were not. employed to find specific property or property purchasable at a fixed price, but we conclude that they were to find, and direct the attention of the defendant to, property which its board would approve as to price and otherwise.' There was substantial evidence tending to show that plaintiffs met the terms of this employment. It is true that the property was acquired at a lower price than that at which plaintiffs called it to defendant’s attention, but that "would not necessarily defeat plaintiffs’ recovery. It was not necessary that in the first instance the bargain presented should be satisfactory, if subsequently it was made so through negotiations brought about by plaintiffs’ disclosure of the property. Of course, the price was material. Plaintiffs would not meet the terms of their employment if they presented property satisfactory in every respect except as to price, unless the price was subsequently made satisfactory in negotiations due to plaintiffs’ disclosure. And in this respect we deem it immaterial that the defendant itself attended to the matter of con-. eluding the bargain, if the consummation was due to the plaintiffs’ disclosure of the property. But if the property, as disclosed by plaintiffs, was not satisfactory to defendant’s board on account of price or otherwise and the disclosure did not result in negotiations which led to the purchase, or if negotiations, begun as a result of plaintiffs’ disclosure, were abandoned, and the ultimate purchase was due to its presentation by another at a satisfactory price, then plaintiffs cannot recover.

We believe that the evidence in this case was such that the question of whether or not the purchase, or the negotiations which led thereto, were due to the disclosure of the property by plaintiffs, which includes the questions whether or not there was the abandonment we have mentioned, and whether or not the purchase was due to its presentation by another, should have been submitted to the jury, along with other matters as indicated in this opinion.

The judgment will be reversed and the cause remanded.

Reynolds, R. J., and Nortoni, J., concur.