Brown v. Smith , 113 Mo. App. 59 ( 1905 )

NORTONI, J.

(after stating the facts). — Appellant argues that there was no evidence showing respondent Brown accepted the proposition to sell the lands for ten per cent commission contained in appellant’s letter supra. There was some evidence tending to show that respondent wrote to appellant telling him that he would go to work on the proposition. But be that as it may, all of the evidence shows that he did accept the proposition contained in the letter and that he immediately commenced to work thereon. The letter is dated March 9. On the 15th day of the same month, in company with one of the appellants, he conveyed the two Ponder ^brothers to the lands and actually consummated a sale of 200 acres of the tract to one of them and negotiated a bargain for the other 200 acres as mentioned in the op: tion and appellants ratified the act by participating therein, making a deed to the tract bought by Wm. L. Ponder and paying / respondent $>700 commissions thereon. The fact that respondent proceeded at once with the full knowledge and consent of appellants to perform the terms of the proposition was sufficient evidence that he understood and accepted its terms. Here was a clear meeting of the minds of competent parties upon the subject-matter for a sufficient consideration, and what more is required to constitute a contract of employment as shown in this case? Nothing more can be adduced to' make a valid contract. Executory contracts of this kind, containing a proposition signed by only one of the parties, when acted upon by the other party, are always held binding. [Stone v. Ostranger, 31 Mo. App. 544; Amer. Pub. Co. v. Walker, 87 Mo. App. 503; Lewis v. Ins. Co., 61 Mo. 534.]

Appellants tried this case in the court below and. has presented it here as though it were a suit by Phillip J. Ponder against appellants upon the option contract in evidence, seeking to enforce said option. We do not incline to that view of the case. The suit is not on the option. It is by a broker for his commissions upon an allegation that he had made a sale of the lands under the contract by which he was employed to sell the same for appellants. That contract is the letter of March 9, by the provisions of which he was authorized to sell 440 acres of land for $85 an acre to any man that the appellants were not on a trade with and for his services therein he was to receive ten per cent commissions. The same terms were to apply to any other lands he sold for appellants. But the lands “must be sold, however, to a man that we haven’t agreed to pay anybody else commission.” We suppose that appellants had also other agents engaged to sell their lands and it was intended by this last rather inartistic provision to provide against their being complicated by respondent possibly negotiating with parties with whom other agents had been negotiating and he was therefore warned not to get them into trouble whereby they would possibly be compelled to pay commissions to two or more agents. This matter is wholly immaterial to this case, however. Ponder was not a man with whom appellants had been negotiating a trade, therefore the contract was that if respondent should sell the 400 acres for $35 per acre, appellants would pay him ten per cent commissions. Respondent sold 200 acres that appellants conveyed to Wm. L. Ponder and received his commission thereon and this left in his hands 240 acres for sale, forty acres of which was sold by appellants. At the same time the sale of the 200 acres was made to Wm. L. Ponder, respondent produced and introduced to appellants, Phillip J. Ponder, who negotiated for 200 acres and took the option on it. By the option in evidence, appellants agreed to sell to Phillip J. Ponder the 200 acres “at $35 per acre, as soon as they could make a good title to the same, the time not to exceed six months.” We construe the last clause of this option to mean, when taken in connection with the body thereof, that the title shall be made good by the appellants and that they bound themselves to convey to him a good title within six months. This put the burden on appellant to make the title good. That they so understood it and intended and expected to do so, all the evidence shows. One of the appellants testified that they immediately went to work toward perfecting the title to eighty acres of the land which was the only defective title involved, and that he offered $800 to make the title good. The parties with whom he was negotiating asked $1,000. This he did not feel like giving. He admits, in the meantime, of having received an offer of $40 per acre for 120 acres, the title of which was good and says that when Ponder came to close the contract and take the land, he wanted to carry out the contract and then offered Mr. Russell $1,000 for a deed to perfect the title to the 80 acres but that Russell declined the offer and therefore he decided not to do anything further toward perfecting the title and that when Ponder offered to take the 120 acres at the same price, he contended that the sale Avas for 200 acres and not for 120 acres and as he had not been able, up to that time, to perfect the title to the eighty acres, he refused to convey at all. The law in cases of this kind is too well settled to require discussion. A real estate broker earns his commission when he finds and produces to the seller a buyer for the land who is ready, able and willing to buy upon the terms upon which the broker is authorized to negotiate the sale. [Goodson v. Embleton, 106 Mo. App. 77, 80 S. W. 22; Finch v. Trust Co., 92 Mo. App. 263; Finley v. Dyer, 79 Mo. App. 604; Huggins v. Hearne, 74 Mo. App. 86; Hayden v. Grillo, 45 Mo. App. 1; s. c., 35 Mo. App. 647; s. c., 26 Mo. App. 289; Gelatt v Ridge, 117 Mo. 553, 23 S. W. 882; Nesbit v. Helser, 49 Mo. 383.] In this case the evidence on the part of both the respondent and ap: pellant shows the broker performed his part by producing a buyer who took an option and in due time, in accordance with such option, arranged Ms business affairs and became ready, able and willing to buy, went to appellants and insisted upon doing so, and was prevented by the deliberate act of appellants in refusing to perfect the title and convey the 200 acres to him and further refused to convey to Mm the 120 acres, leaving out of the question the eighty acres with defective title. In a case where the owner refused to convey, as in this case, the law declares the sale complete, so far as the broker is concerned, and his commissions are due upon his producing a purchaser ready, able and willing to buy. The performance upon the part of the broker was then complete and the sale consummated so far as the agent was concerned, for the reason that he had done all he had contracted to do and all the law requires. He was helpless and could do no more. Ir such cases the law regards the sale as complete in so far as the agent, his services and commissions are concerned. [Goodson v. Embleton, 106, Mo. App. 77, 80 S. W. 22; Real Estate Co. v. Ruhlman, 68 Mo. App. 503; Wright & Orison v. Brown, 68 Mo. App. 577; Hart v. Hopson, 52 Mo. App. 177; Stinde v. Blesch, 42 Mo. App. 578; Hayden v. Grillo, 42 Mo. App. 1; Gelatt v. Ridge, 117 Mo. 553, 23 S. W. 882.]

The recovery in this case was ten per cent of the total for the' sale of 120 acres of land. It could have been for ten per cent on the sale of 200 acres. The evidence in the record would have warranted it. To construe the option as appellants would have us construe it, could not relieve them from paying the commissions. Respondent was employed to sell 440 acres of the land of which he had sold 200 acres and appellants had sold forty acres, thus leaving 200 acres, and he was entitled to his commissions upon producing a buyer ready, able and willing to take 200 acres or any part thereof that appellants could convey. While the employment to sell the 200 acres might not have entitled respondent to commissions upon producing a buyer for 120 acres, yet when it appears as a matter of fact that he produced a buyer for all of the 200 acres that appellants were able to convey, then he performed all that he was required to perform, and appellants were bound to convey so much thereof as they could make sufficient title to. They could not be excused from paying respondent’s commissions when he had wholly performed on his part, by the mere fact that they found themselves unable, or had done some act which rendered them unable to perform on their part. “A principal cannot relieve himself from liability by a refusal to consummate the sale or by a voluntary act of his own, disabling him from performance.” [Bailey v. Chapman, 41 Mo. 536; Nesbit v. Helser, 49 Mo. 383; Woods v. Stephens, 46 Mo. 553; Goodson v. Embleton, 106 Mo. App. 77.] Upon appellants declaring their inability to convey good title to the whole tract, the buyer expressed a willingness and offered to pay cash for 120 acres at the agreed price. This was all the law required and entitled respondent to commissions on the 120 acres at all hazards, and was ample evidence to support the finding of the jury for commissions on the 200 acres if the jury had so found. After the broker had devoted his time and labor in a transaction to which he was moved by appellants employing him, he could not be defeated of his compensation because the appellants found themselves unable to perform. This was a matter they should have taken into account before employing a broker and not after.

The only errors in the instructions on the part of respondent were against respondent’s interests and therefore appellants were not aggrieved thereby. The first instruction on the pact of the plaintiff submitted the question to the jury as to whether or not appellants agreed by the option, .unconditionally to convey the 200 acres, whereas the court should have constrúed the option as we have done, and told the jury that appellants had obligated themselves to perfect the title and convey the 200 acres within six months. The jury however found for the plaintiff to the extent of the commissions on the sale of the 120 acres. The second instruction on the part of plaintiff tells the jury that if plaintiff procured a purchaser who was ready, willing and able to buy, even though no sale was actually made, plaintiff was entitled to recover. The court should have declared that upon plaintiff’s procuring and introducing a purchaser ready, able and willing to buy as appeared in evidence, that the sale was then consummated in so far as the agent was concerned and that his commissions were due thereon, if the jury found the facts to be as predicated in other parts of the instruction.

It is unnecessary to notice the other question raised in appellant’s brief. The only errors committed in this case were against respondent. Appellants therefore cannot be heard to complain. The judgment is for the right

party and should be affirmed. It is so ordered.

All concur