Russell v. Poor , 133 Mo. App. 723 ( 1908 )

JOHNSON, J.

This suit is to recover commission for the alleged employment by defendant of the plaintiff to sell or exchange certain lots of ground belonging to him in Kansas City, Misouri, for other real estate. The date of the alleged employment was on or about April, 1904. It Avas shoAvn that plaintiff for awhile after said date endeavored to find either a purchaser for defendant’s lots or for exchange for the same but without success. In June, 1904, plaintiff learned of a farm in Wyandotte county, Kansas, which the defendant finally accepted in exchange for his said lots. Plaintiff called defendant’s attention to the farm and asked him. Avhether he would trade his lots for said farm, to which defendant answered that he would, if the terms were satisfactory, and at the same time he gave to plaintiff a description of his lots and their estimated value. Within a short time plaintiff saw defendant and gave him a description of the Wyandotte county farm, the name of the owner and the terms upon which the trade could be made. The terms proposed were not satisfactory to defendant. The plaintiff then began looking for other property for exchange for that of defendant, but he did not succeed in finding any that defendant would accept.

About June, 1904, one George W. Mickle a real estate agent, made a proposition to defendant for an exchange of the Wyandotte county farm for the defendant’s lots. The farm was owned by one A. B. Havens. The exchange of lots for the farm was consummated in June, 1905, at which time Mickle, changed the terms of his former offer which defendant, after inspecting the farm in company with him, accepted and the exchange was agreed upon.

It was shown that Mickle was the agent of the owner of the farm who had transferred it to his two children during the period of the negotiations, and received from him, or them, a commission for making the exchange. There was evidence that after Mickle became known in the transaction he conferred with plaintiff as defendant’s agent in regard to the exchange of the properties and that it was through the efforts of plaintiff that Mickle’s attention was called to the fact that defendant wanted to exchange his lots for the farm. This latter information was conveyed to Mickle by Havens the owner of the farm, who knew, as a matter of course, of plaintiff’s efforts in the first instance to make the exchange. It was also shown that before he would make the exchange defendant sent word to plaintiff that he would not pay him any commission, but, plaintiff denies that he received word. Plaintiff sent word to defendant, if the e-xchange was made he would charge him with commission; but defendant claimed that the exchange had been made when he received such word. The finding and judgment were for plaintiff; and defendant appealed.

There wag evidence that the plaintiff was instrumental in bringing about the exchange and the finding of the jury as to that matter is conclusive. Therefore we will not discuss the first contention of the defendant, that plaintiff did not show by a fair preponderance of the credible testimony that he was the procuring cause for the transfer of the property, and because defendant proved beyond a reasonable doubt that another real estate agent was such procuring cause.

Another contention of defendant is that plaintiff was not entitled to recover because his authority as agent was not evidenced by writing as required by the statute governing such agencies, in cities of over three hundred thousand inhabitants. The defendant does not claim that Kansas City has a population of over three hundred thousand inhabitants, but his proposition is that plaintiff did not prove that it did not have that number. He was not required to make such proof, as the court was bound to take judicial cognizance of the last census which shows that the city has less than the number mentioned.

The defendant has cited fifteen Missouri cases to the effect, that, a real estate broker, before he is entitled to his commission for a sale or exchange of property, it is necessary that his acts must be the procuring or inducing cause, and that it will not suffice for his act to be merely one of the chain of causes producing the contract. To all this we assent. But as before stated there was evidence upon which plaintiff could recover under the rule so well established by the authorities mentioned.

Finding no error the cause is affirmed.

All concur.