Harkness & Russell v. Briscoe , 47 Mo. App. 196 ( 1891 )

Smith, P. J.

The plaintiffs brought suit against ■defendant on a promissory note for $400 made to H. S. Burgin, and by him assigned to the plaintiffs after maturity. The answer, after admitting the execution and assignment of the note, alleged that said note was obtained from the defendant by said Burgin, and defendant was induced to execute the same in payment of commission to said Burgin for effecting the exchange of a farm owned by the defendant in the state of Kansas, known as the Elm Ranch, for Kansas City real estate; that said Burgin was at said time a real-estate agent in Kansas City, Missourithat he undertook and agreed with this defendant to effect an exchange, for defendant, and as his agent, of defendant’s said farm for Kansas City property, and in said transaction to act for and represent defendant, and to use his best judgment and skill in managing such matter, and acting for defendant in making said exchange ; that said Burgin further agreed and undertook to examine the title to the property for which defendant’s said farm might be exchanged, and to ascertain and report whether there were incumbrances against the same, before the completion of any contract that he might make for the exchange of defendant’s farm for such property; that, for all of said services faithfully performed by said Burgin, the defendant was to pay him the sum of $400 ; that the said Burgin effected an exchange, and represented to the defendant that he had examined the title to the property in Kansas City which he, as defendant’s agent, had agreed to receive in exchange for said farm, and reported certain incumbrances, and none other upon said property; that defendant was thereby induced to ratify said trade and to convey his said farm to the owner of said Kansas City property, and to accept deeds for said Kansas City property in exchange for said farm ; that said Burgin then assured the defendant that he had faithfully represented and acted for him in making said exchange, and that he had carefully examined the records, as to the title of the Kansas City property, and that he was entitled to the said commission of $400 ; that defendant thereupon executed said note sued on and delivered same to Burgin in payment of said commissions, and for no other consideration; that in truth and in fact the .said Burgin had not earned said commission, and his representations that he had faithfully acted for the defendant, and as his agent in said exchange, and had carefully examined the records, as to the title of said Kansas City property, were false, and were made fraudulently to induce this defendant to execute said note; that the defendant believed said statements to be true, and executed said note in ignorance of the real facts ; that said Burgin, without the knowledge of the defendant, was, in the matter of said exchange, acting for and as the agent of the other party to the contract of exchange, and was in the employ of said party, and was paid for the services in effecting said exchange by the owner of said Kansas City real estate; that said Burgin did not carefully examine the records as to the title of said Kansas City property, and did not report the incumbrances thereon to the defendant, but on the contrary, said Burgin, wholly failed and neglected to mention or report an incumbrance on part of said property; and after said exchange said property was sold to satisfy such incumbrance, and was wholly lost to the defendant, whereby the defendant lost the sum of $1,000 ; that the defendant, at the time he executed the note sued on, was ignorant of the employment of said Burgin by the other party to said contract, and of the failure of said Burgin to examine said title, but was induced to execute the same by' the false representations of said Burgin, that he had complied with his contract and was entitled to said commission. The replication was a general denial.

I. The appealing plaintiffs contend that the trial court erred in giving instruction, numbered 1, for defendant, which, in effect, told the jury that, if it was ' Burgin’s contract that he should examine the abstracts of title and report the incumbrances upon the property, in addition to effecting the exchange, and that for his entire services he was to receive $400, and that he did not make such examination as required by the contract, or if he was without the defendant’s knowledge acting as the agent of, and was receiving pay from, the other party to the contract, then he was not entitled to compensation for his services from the defendant, and if the note was given for such compensation by defendant while he was ignorant of said facts, and that the same was transferred by Burgin to plaintiffs after maturity, there could be no recovery. The first ground of objection suggested is, that there was no evidence offered by the defendant showing that he had sustained any loss by reason of the sale of the property under the unreported judgment. We do not so understand it. The undisputed evidence is, that the defendant exchanged his Kansas farm for three improved lots in Kansas City, and that, shortly after the delivery of the deeds to him therefor, one of- them was-sold under the judgment, so that he never entered.into the possession of it. It seems that the defendant entirely lost this piece of property for which he, in part, exchanged what appears to have been a farm of great value. The evidence gives no direct intimation as-to the value of the property which the defendant lost by the alleged neglect of Burgin to ascertain and report-the fact-that the judgment was a subsisting lien on it.

If this were an action by the defendant against Burgin on the verbal contract, the measure of his damage would probably be the -value of the property lost. The defendant would be in such case entitled to be at least placed in as favorable condition as he would have-been had the contract been performed on the part of Burgin. But in this action between the present parties we think that principle inapplicable. The rule outlined in the instruction in question, to the effect, if Burgin did not [perform the contract with defendant according to its terms, that then the plaintiffs could not recover on the note, was, we think, the proper one. Fletcher v. Wagon Co., 35 Mo. App. 321; Stout v. Tribune Co., 52 Mo. 342; Earp v. Tyler, 73 Mo. 617; Reiger v. Bigger, 29 Mo. App. 429.

II. The plaintiffs? further contention is that parol evidence is inadmissible to incorporate with a written instrument an oral agreement made contemporaneously therewith or anterior thereto. No doubt the rule is-well settled, as the cases cited by plaintiffs’ counsel fully attest, that it will be conclusively presumed that a written contract, which purports to contain the entire agreement, covers the entire subject and extent of the understanding of the parties thereto. The tripartite written agreement in this case does not jrarport to cover the entire subject of the verbal agreement. The obligation which this agreement imposed upon Burgin to ascertain the incumbrances on Malone’s prox>orty and to see that defendant got good title to the same, as well as the matter of commission was not covered by the written agreement. This matter was omitted therefrom. The execution and performance of the latter was wholly independent of the tripartite agreement. It was a condition precedent — one of the essential steps which led up to the execution of the contract for the exchange of properties with Malone. It was breach of the verbal contract on the part of Burgin before the written contract was entered into that occasioned the loss of the lot by the defendant. There is nothing in the written contract- indicating that the defendant had waived any right that had already accrued under the verbal agreement, or that he intended to release Burgin from his obligations under the latter. The instructions of the court in respect to the validity and effect of the antecedent verbal agreement, were not erroneous. Harrison v. Railroad, 74 Mo. 364.

III. The plaintiffs contend that the trial court committed further error in declining to instruct the jury in effect that, when a broker acts as a middle man in bringing parties together who make their own trade, he can recover commissions from both parties, though neither has knowledge of his dual employment. Without expressing an opinion upon this proposition as stated, it is sufficient to say that there was no evidence tending to show that Burgin was employed merely to perform the preliminary work of bringing the parties together for mutual negotiations. Defendant placed his property in Burgin’s hands as his agent for exchange, and he was entitled to his undivided services. Burgin advised him that the trade would be a good one. He implicitly relied on the representations of Burgin. He did not know that he (Burgin) was also acting as the hired agent of Malone, in the matter. The functions which he had engaged to perform for the defendant, involved the exercise of all his skill, judgment and’discretion. We have Burgin acting as agent of both parties, his conduct in this particular giving evidence of the deep wisdom of the law in delaring such an act fraudulent and of no effect. Accordingly, a contrivance which reduces the two parties to one, and admits an agent representing antagonistic interests to make a bargain by himself, is so far against the policy of the law that the contract is held void. It is a sufficient objection to a contract on the ground of public policy that it has a direct tendency to induce fraud and malpractice on the rights of others. Rees v. Garth, 36 Mo. App. 641; Huggins, etc., Co. v. Ins. Co., 41 Mo. App. 530. There was no error in the ruling of the court in this regard.

IY. It may well be doubted whether the written contract offered by the plaintiffs in evidence was admissible under the pleadings, since it was not pleaded in avoidance of the agreement set up in the defendant’s answer’. However that; may be, we are not inclined to think the defendant’s third instruction, which told the jury that, as the blank in the said contract was not filled, upon its face it did not show that Burgin was to receive compensation from Malone for his services in making the exchange, was erroneous. We do not think any recital in the written contract informed the defendant that Burgin was to receive compensation from Malone for the services covered by the defendant’s verbal agreement with the former. The instructions given for the plaintiffs with the three given for defendant presented the law applicable to every possible aspect of the case.

The action of the court in refusing the ten other instructions asked by plaintiff was proper enough. It” would have been justifiable on account -of their great number, especially in so plain and simple a case as this.

Th’e judgment is affirmed.

All concur.