Page & Austin v. Griffin

71 Mo. App. 524, 1897 Mo. App. LEXIS 499

• Court: Missouri Court of Appeals
• Decided: June 7, 1897
• Status: Published

Opinion

Ellison, J.

This action is to recover $100 alleged to be due plaintiffs as real estate agents for procuring an exchange of lands for defendant with W. W. Davis. • The judgment of the circuit court was for defendant. The evidence showed that defendant employed plaintiffs about the middle of February to make the exchange and that plaintiff Austin, perhaps on the day of the employment, brought the parties together. That negotiations began then and continued with plaintiffs’ aid until the first of March.' That then they ceased for a time when, they were taken up by the parties themselves and continued a few days when the trade was made, about the middle of April, on substantially the same terms originally offered while plaintiffs were conducting, or aiding in, the négotiations.

There was evidence tending to show that the contract was limited with plaintiffs in point of time to the first day of March and that at that time plaintiffs gave up hope of making the trade and declared their agency in the matter at an end. Under this state of the evidence the court gave the following instructions of its own motion:

“If the jury believes from the evidence that W. W. Davis was brought to a negotiation with defendant while plaintiffs were the agents of defendant in relatiou to the sale or exchange of defendant’s land from information given by plaintiff to W. W. Davis and defendant which resulted in the sale or exchange of the property of defendant they will find for the plaintiffs unless they further find that by agreement Austin was to complete the exchange before the first day of March, 1895.

“2. The court instructs the jury that if the dofendant employed the plaintiffs to sell or exchange the land of the defendant on an agreement for a certain amount and if plaintiffs in pursuance of said employment procured or introduced a purchaser who bought the land of the defendant or exchanged other land for defendant’s land even though they may find from the evidence that after the plaintiff had found said purchaser, defendant perfected the sale or exchange on different terms than those on which plaintiffs were authorized to sell or exchange of property, they will find for the plaintiffs, unless they further find that the trade hr exchange was to be made before the first day of March next thereafter.

”3. The court instructs the jury that if they believe from the evidence that plaintiffs while acting as the agents of the defendant procured a purchaser for the sale or exchange of defendant’s land and that said purchaser was procured while their agency was still in force and negotiations were kept up with said purchaser and the negotiations resulted in a sale or exchange, then they will find for the plaintiffs, although they may believe that the plaintiffs’ agency expired before the sale or exchange was finally closed, provided they further find that the time for the consummation of said exchange was not limited to the first day of March aforesaid.”

Rker: procunrn°¿ mTnatfonA coñIt will be observed from these instructions that defendant was to be held liable to plaintiffs notwithstanding the negotiations between the parties which had been brought about by plaintiffs resulted in a trade on different terms than those originally contemplated. And that defendant was still to be held if plaintiffs brought the parties together and set on foot the negotiations, notwithstanding their agency had expired, unless the evidence established that the exchange was, by the terms of tbe contract, to be limited to March the first. In our opinion these instructions properly presented the law as applied to the evidence in the case. If plaintiffs agreed that they would consummate the exchange by the first of March, and failed, and afterward as a separate undertaking, defendant and Davis, themselves, made the exchange, plaintiffs have no right to compensation from defendant. It may be freely conceded that defendant would have no right to accept of the fruits of plaintiffs’ service without compensation. But such service was to consummate the exchange by a given time and was to cease in effort at that time. The fact that plaintiffs brought the parties together, when considered with the further fact, that the full contract time expired without results, ought not to forever debar defendant from disposing of his land to the party found by plaintiffs.

We discover no error in the court’s action on plaintiffs’ instructions and finding nothing to justify us in interfering with the judgment, we order its affirmance.

Smith, P. J., concurs; Gtll, J., absent.