Warren v. Cram , 71 Mo. App. 638 ( 1897 )

Bland, P. J.

^“o’i.Sfcon1 amíevfdence. Action for a commission for selling appellant’s house. In 1892 Oram said to Warren (a real estate broker), “I wish you would get'me a customer for my place in Chamberlain Park,” and at Warren’s solicitation gave him the location and a description of the property. Warren then asked him what he wanted for the property. Oram said $50,000. Warren then said, “If I can get a customer I shall charge you two and one half per cent commission.” Oram’s reply was: “That is all right; I am perfectly willing to pay for services rendered.” Warren testified that when he was unable to- find a purchaser at $50,000, Oram lowered the price, but he does not state at what date this was done, nor the figures to which the price was lowered. In 1895 Warren made repeated efforts to sell this property to a Mr. Elliot, without success. On giving up his effort to sell to Elliot, he requested Elliot if he should see a customer for the property to send him to him (Warren). This Elliot promised to do. After this, some time in the year 1895, Elliot called the attention of Louis Ohauvenet to the Oram property and-to the fact that it was for sale. Ohauvenet called upon Cram in June, 1895, and purchased the property in the name of Mrs. Ohauvenet for $45,000. Warren did not advertise the property for sale. He did not see Ohauvenet before the latter purchased the property, nor did he have any knowledge of the purchase until some time after its consummation. Ohauvenet’s attention'was not called to the property by any act, word or effort of Warren’s, unless it can be said that Elliot was speaking tor Warren when he directed Ohauvenet’s attention to the property. From the testimony of both Warren and Elliot it can not be contended that Elliot was the agent of Warren to find him a customer for this property. What he .was requested to do by Warren, was to be done as a neighborly act. What he agreed to do was as an act of friendship, that is, to direct a customer to Warren if one should chance to come to his knowledge. Whether in such circumstances it can be said that Warren was not the efficient and procuring cause of the sale, need not be decided in this case, as was done in Van Dyke & Co. v. Walker, 49 Mo. App. 381, since our decision can be founded upon a more satisfactory basis. Warren’s contract was to sell for $50,000. He testified, it is true, that the price was afterward lowered, how much he does not say. His testimony on this point is unsatisfactory and valueless; it proves nothing; hence he must be held to the contract as averred in the petition, to sell the property at $50,000, or find' a purchaser at that price. This was not done; his contract was never performed, and he can not recover. Blackwell v. Adams, 28 Mo. App. 61; Reiger v. Reiger, 29 Mo. App. 421; Stinde v. Blesch, 42 Mo. App. 578; Hackmann v. Gutweiler, 66 Mo. App. 244. The court should have instructed the jury as prayed by appellant, that' under the evidence the plaintiff could not recover. It follows that the judgment must be reversed.

All concur.