Slayback v. Wetzel

123 S.W. 982, 146 Mo. App. 171, 1909 Mo. App. LEXIS 438

Opinion

REYNOLDS, P. J.

(after stating the facts). — If defendant had accepted the offer of Mrs. Freasier as made, he would have received only $87.50 net over the $16,000, and by accepting the contract and making the sale to Mrs. Freasier, he would have rendered himself liable to the plaintiff for five hundred dollars, if it was true that through plaintiff’s presentation of the property to her, Mrs. Freasier had been induced to, or was ready, willing and able to buy, so that out of the $16,500 nom inally paid him, defendant would only be realizing $15,587.50. This was not the contract which he had' authorized plaintiff to make.

Furthermore, instructions 1 and 2 are inconsistent and confusing. By the first one the jury were told that the amount plaintiff was entitled to recover was the difference between the sum of $16,000 and the sum of $16,500, whereas by the second, they were told that if plaintiff recovered he was entitled to recover the difference between $16,000, “and the sum which you may believe and find from the evidence the purchaser secured by plaintiff, if any, was willing to pay for the flats belonging to the defendant, as described in evidence.” If Mrs. Freasier was only willing to pay defendant $16,500, less the commission of two and one-half per cent to Harkrader, her net offer to defendant would bé only $16,087.50, and that would entitle plaintiff to only $87.50. This instruction was in conflict with the first instruction, which fixed his right of recovery at $500.

The first instruction is further defective, however, and fatally so, in that it omits from that instruction the very essential requirement that the proposed purchaser was willing to purchase the property on the terms given the agent by his principal. When defendant attempted to correct this by his instruction No. 3, those parts which would have corrected it were stripken out. Instruction No. 3, given at the instance of defendant, as asked, embodied that as a condition to recovery, that the jury could not find for plaintiff, “unless you shall further find from the evidence that he, plaintiff, was the procuring cause of said offer to purchase said property by Mrs. Freasier, and that the terms and conditions of said ofer was the same, and the price to be paid to defendant, including commission on said sale, was the price at which plaintiff was authorized to sell the same by defendant. And if you- shall -find from all the evidence that said offer imposed new or different conditions, and imposed or carried with it a requirement to pay other or additional commissions, from ioha,t was agreed to he paid hy him to plaintiff, for the sale of said property, plaintiff cannot recover in this action” The court struck out from this instruction asked hy the defendant the italicized words. It is true the words, “and on the terms given him hy his principal” are in the fourth instruction, but that left it inconsistent with the first.

In Brown v. Smith, 113 Mo. App. 59, Judge Noutoni, at page 68, announces the rule as well settled by the authorities, to be that, “A real estate broker earns his commission when he finds and produces to the seller a buyer for the land who is ready, able and willing to buy upon the terms upon which the broker is authorized to negotiate the sale.” He cites many authorities in support of this rule and follows it with the declaration that in such cases, that is, when the broker has performed these acts, the-law regards the sale as complete in so far as the agent and his services are concerned and that being so, he is entitled to his commission. It is just as essential that the proposed purchaser is willing to take on the conditions of the proposed vendor, as those terms are prescribed to the agent when the sale of the property was committed to him, as it is that he shall be ready, willing and able to take and pay for the property at all. This same rule is announced by the Supreme Court in Morgan v. Keller, 194 Mo. 663, where many authorities are compiled and commented upon. In omitting to include any distinct reference to this rule in the first instruction given and in striking it out from instruction No. 3, asked by defendant, the court committed error to the prejudice of the defendant.

The court tried this case ou the theory that it was immaterial whether a sale had been in fact effected or not, provided plaintiff brought forward a customer ready, willing and able to purchase. That is correct, only however, with the added element that that cus tomer was also willing to purchase on terms that came within those authorized to be made by the principal. In the case at bar this last element is fatally lacking. Nor is there any evidence that the defendant accepted the offer of Mrs. Freasier. On the contrary, it is set out in the affidavit, setting out what defendant would have testified, if present, that he refused to make the sale under the contract which proposed that he make it through the realty company, and that that contract obligated him to pay the realty company $412.50 commission on the sale. The proposed contract lacks the signature of the defendant as owner or of any one on his behalf authorized to sign or, in fact, of any one pretending to sign for him, yet it is set out in it, in so many words, that .“This sale under the above terms and conditions is made subject to the approval of the owner of property,” and the owner never did approve it. It further appears by the testimony, that the earnest money was paid back. Mrs. Freasier testifies positively that she did not buy the property under this contract, which is the only one in evidence in the case, or pretended to be made by her or agreed to by her, and it does not appear that she ever bought it at all under any. contract. The fact of refusal of the defendant to accept the contract and the fact that the sale fell through, were facts in this case pertinent, material and relevant to the issue and should have been admitted, and this without at all disturbing the rule that when the agent has procured a purchaser, who comes within the terms of his authority to make a sale,he (the agent) is not required to go on and actually consummate the sale himself in order to entitle him to a commission. We are not disturbing or throwing any doubt upon that rule, but under the facts of this case we hold that testimony of the fact of non-acceptance of the contract by defendant and of an entire failure to consummate the sale on that account, was relevant and material as tending to prove that the whole deal fell through and was abandoned by the parties to it. If the failure of the sale was caused by defendant’s refusal to go on with it, then the plaintiff is entitled to his commission, unless that refusal was justifiable. That is, if defendant refused to consummate the sale, when the proposed purchaser stood ready and was able to comply with the terms prescribed, the agent who brought such purchaser forward is entitled to his commission. That the contract proposed to Dr. Wetzel, in the form proposed, was not the contract which he had authorized this defendant to make, is beyond all question. If he had accepted the contract proposed to him by Mr. Harkrader on behalf of Mrs. Freasier, defendant would have been obligated to have paid to Harkrader’s company, as agent for Mrs. Freasier, a commission of two and one-half per cent on the $16,500, and while nominally receiving the $16,500, in point of fact he would have received but $16,087.50. On the theory of plaintiff in the case, that it was through him that the sale was made,.and upon the theory upon which the case was evidently determined by the court and jury, the plaintiff having brought the parties together under this agreement Avould have been entitled to $500 as his commission, that being the difference between the $16,000 and the $16,500, and if defendant had been obliged to pay him this $500 in addition to the $412.50, which he would have had to pay Harkrader or Harkrader’s firm, he would have received but $15,587.50, which was nearly $500 below the price at which he had authorized the plaintiff to make the sale. Conceding that Mrs. Freasier made the offer to buy which she did make in the contract in evidence, through the procurement of plaintiff, that does not give plaintiff a right to recover unless that contract was in accordance with the terms of his employment by defendant, or was accepted by defendant as a substantial compliance with those terms. Neither of these are facts. That there was no acceptance of the proposed contract is beyond dispute.

We do not consider it necessary for the purposes of this case to take up and examine in detail the contract which was proposed to the defendant, or to determine whether or not the terms in that contract, even outside of this provision for commission, were within the authorization or agency or employment of the plaintiff. It is sufficient to say that all the defendant had authorized plaintiff to do was to sell for a sum netting defendant $16,000. No authority to adjust the terms or conditions of the proposed sale was committed to the plaintiff. The effect of this was to reserve the determination of details to defendant. The contract which was tendered undertook to provide for a cash payment of $7000 only; the purchaser agreeing to assume two deeds of trust aggregating $9500. It further undertook to provide that the sale was to include all fixtures, such as screens, shades, gas stoves, etc., now on the premises. It undertook to provide for the payment of interest semiannually at a given rate and to provide for securing the deferred payments by a first deed of trust on the premises. It undertook to provide that if upon examination of the title it was found to be imperfect and was not perfected within a reasonable time, the purchaser was to be paid the reasonable cost for examining the title and the earnest money should be refunded; it undertook to provide that the sale under the contract should be closed on or before January 31, 1908, at the office of Harkrader-Singer Realty Company, and if not closed by that time, owing to the failure or neglect of the purchaser to comply with the terms thereof, the earnest money was to be forfeited. Not a word can be found in the contract of employment defendant gave to plaintiff, authorizing the plaintiff to settle these matters. When this proposed contract, with all these provisions set out in it, was submitted to the defendant, he was under no obligation to accept it. It was the only one presented. At the very outset of it, it provided, not for a cash sale but for part cash and part assumption of two deeds of trust. Plaintiff’s authority was for a cash sale, for the presumption always is that when a man names the price at which he will sell, nothing else being said, that he means a sale for cash.

Furthermore, in this proposed contract of sale, it is distinctly set out, “That this sale under aboye terms and conditions is made subject to the approval of the owner of the property,” and as before remarked, there is not a particle of testimony in the case to indicate that the owner of the property ever accepted it, the evidence being directly to the contrary. So that the evidence not only fails to show a purchaser produced ready to purchase on the terms proposed, but shows one who proposed terms defendant was not only not bound to accept, and which he had not only not authorized plaintiff to include, but which defendant refused to accept.

On consideration of all the facts in the case and of the law as applicable to those facts, plaintiff cannot recover. The judgment of the circuit court is reversed.

All concur.