Cox v. Bowling , 54 Mo. App. 289 ( 1893 )

Gill, J.

— This is a suit for commissions for sale of real estate. Plaintiff had judgment below, and defendant appealed. The material facts are about as follows: Bowling owned a house and lot in Lamar, Missouri, which he desired to sell. He agreed with Cox, an agent, that if he, Cox, would find a purchaser for the house and lot at the price of $2,500 he would allow him $100 as commissions. Cox entered into negotiations with one Snyder, a resident of Lamar, and made an effort to sell the property to Snyder at the fixed price of $2,500. Snyder refused to give that sum and offered to purchase at a less amount, which Bowling then declined. Cox made repeated efforts to get the parties together, but to no purpose, and the negotiations then ceased. A short time thereafter the building on the lot was destroyed by fire. A few days after the fire Bowling and Snyder met on the street, and after a brief interview Bowling sold the lot (then vacant) to Snyder for $2,000.

Plaintiff originally brought his action before the justice of the peace on the special contract which, as already stated, was that defendant was to pay plaintiff the agreed price of $100 if he sold the property for $2,500; but since plaintiff was unable to prove that the lot was sold for $2,500 the complaint was amended in the circuit court, over defendant’s objection, so as to sue in quantum meruit, and it was upon this amended petition plaintiff was allowed to recover.

We find it unnecessary to pass on the question last above suggested, that is, the right of the plaintiff to file the amended complaint in the circuit court, since in our opinion the evidence made no case for the plaintiff, and the trial court should have given a peremptory instruction for the defendant.

Even if there had been no change. in the nature and condition of the property subsequent to plaintiff’s employment, the right to commissions in this case may well be questioned, since according to the testimony of both parties the nature of plaintiff’s engagement was, it seems, that he was to be paid $100 if he found a purchaser able and willing to give ‡2,500 for the house and lot, and otherwise no compensation was to be paid. Nor is there any evidence tending to show that this original contract was ever changed or modified.

But, however this may be, plaintiff did not secure a purchaser for the house and lot he engaged to sell. Snyder and Bowling were never able to agree on a price for the property as it stood when Cox conducted the negotiations. Bowling’s price — and that, too, at which Cox undertook to sell — was $2,500, but Snyder was not willing to pay that for the property. Subsequently, however, when the building was destroyed and the property became materially changed (so that indeed it was not the same as when Cox was employed to sell it), Bowling and Snyder came together and a-sale of the vacant lot was effected. But this was not the property that Cox was empowered to sell. There was nothing said between Bowling and Cox after the destruction of the building. So material a change in the subject-matter of the agency amount to a revocation of Cox’s authority as agent. It is well settled that the authority of the agent is determined by the destruction of the subject-matter of the agency. Story on Agency, sec. 499; Ewell’s Evans on Agency, sec. 132; Mechem on Agency, sec. 238.

The judgment of the circuit court must bo reversed.

All concur.