Gaty v. Foster , 1885 Mo. App. LEXIS 387 ( 1885 )

Opinion by

Hall, J.

The defendant complains here of the giving of plaintiff’s instructions, numbers one and three.

We think, as contended by defendant, with a certain limitation, ‘ ‘ that after a broker has been allowed a reasonable time in which to procure a buyer and effect a sale and has failed to do so, and the seller, in good faith and fairly, has terminated the agency, and himself consummated a sale, it does not give the broker a right to commission because the purchaser is one whom he introduced, and the final sale is, in some degree, aided or helped forward by his previous unsuccessful efforts.”

In support of this proposition of law the defendant has cited Sibald v. Bethlehem Iron Company (83 N. Y. 378), and Wylie v. Marine National Bank (61 N. Y. 416). And by those cases the proposition, as contended for by the defendant, is enunciated, but with one important limitation. In Sibald v. Bethlehem Iron Company, supra, after stating said proposition, it is said: “ This, however, must be taken with one important and necessary limitation. If the efforts of the broker are rendered a failure by the fault of the employer, if he capriciously changes his mind after the purchaser is ready and willing, and consenting to the prescribed terms is produced, * * * then the broker does not lose Ms commission. And that upon the familiar principle, that no one can avail himself of the non-performance of a condition precedent, who has himself occasioned its nonperformance.” And to the same effect is Wylie v. Marine National Bank, supra.

By those cases and by a long list of adjudicated cases we understand the law to be that, if the owner of property employs a broker to sell it, or to find and send to him a purchaser for it, and in the contract of employment prescribes the terms and conditions on which the broker may act in selling or in securing a purchaser, and if the broker does not himself sell the property but does find and send to his employer one who is ready, able and willing to buy the property on the terms and conditions prescribed in said contract, and offers so to do, then the broker has earned his commission and is entitled to it whether the employer accepts the offer or not. The employer cannot impose conditions other than and in addition to the conditions named in the contract, under such circumstances, so as to prevent the broker from receiving his commission. If the employer has prescribed in the contract as one condition that he will give to a purchaser immediate possession, he can no more, by refusing to sell unless the purchaser will permit him to retain possession for the ensuing four months, prevent the broker from receiving his commission, than he could so do by-refusing to sell the property for $3,600, the price named in the contract of employment, and by demanding $4,600 or any other larger sum, from the purchaser ready, able and willing to pay $3,600. . The proposition contended for by defendant applies only to those cases in which the proposing purchaser, sent by the broker, fails to accept the terms and conditions named in the contract employing the broker, if they be fixed by the contract. The proposition does not apply to those cases in which such proposing purchaser accepts said terms and conditions, and is ready, able and willing to carry them out. Bailey v. Chapman, 41 Mo. 538; Carpenter v. Rynders, 52 Mo. 278; Budd et al. v. Zoller, 52 Mo. 242; Phelan v. Gardner, 48 Cal. 311; Cook v. Fiske, 12 Gray 493 : Fisher v. Drewett, 7 Rep. 350. By nothing said here do we intonate that the employer may not, at any time before such a purchaser is sent to him by his broker, revoke in whole, or in any manner modify his contract with the broker. For this reason the defendant’s instruction is not correct and should not have been given. It ignores the limitation placed upon the defendant’s proposition by the authorities cited. The defendant’s proposition as limited, we think, is the law, and is in perfect harmony with Tyler v. Parr (52 Mo. 249) Timbermann v. Craddock (70 Mo. 638), and similar cases.

The fact that instructions one and three given for plaintiff conflict with defendant’s instruction does not, therefore, of itself constitute error. But plaintiff’s said instructions are incorrect. They ignore defendant’s proposition as limited by us herein. The facts, that Anderson was directed to defendant by plaintiff, and that he met defendant and began negotiations with him for the purchase of the farm, prior to the revocation of the plaintiff’s agency, and that after such revocation the purchase was made by Anderson, do not necessarily entitle plaintiff to his commission. As we have said hereinbefore, if Anderson did not offer to buy on the prescribed terms and conditions, and if, after negotiations began, the defendant, in good faith and fairly, and not to defraud the plaintiff, revoked the plaintiff’s agency and afterwards made the sale himself to Anderson, the plaintiff would not be entitled to his commission.

While it is true the evidence tends strongly to show that Anderson was, prior to November 1,1882, ready, able and willing to purchase the defendant’s farm on the prescribed terms and conditions, and offered so to do; yet, this is not an admitted fact, and from the evidence of the defendant the contrary might be inferred. This fact is, therefore, at issue in this case, and should have been submitted to the jury. This was not done. The jury have not passed upon it. We cannot do so. It is true as argued by plaintiff, that the jury have in a certain sense found that the defendant, in revoking plaintiff’s agency did not act in good faith. But the instructions given for plaintiff and defendant are so contradictory that we cannot say that they did so uninfluenced by that fact. The instructions given for both plaintiff^ and defendant, as we understand the law, are incorrect. The issues of fact were not properly submitted to the jury. And we cannot permit the judgment herein to stand, without ourselves passing upon those issues, a thing, whatever we may think about the merits of the case, we cannot permit ourselves to do.

The judgment is reversed and the cause is remanded.

All concur.