Williams v. Enochs , 1987 Mo. LEXIS 369 ( 1987 )

WELLIVER, Judge,

dissenting.

I respectfully dissent. The instruction proposed by the principal opinion omits reference to the most important element required to be proved by plaintiff — that an “employment relationship” existed between the owner of the property and the plaintiff broker suing for a real estate commission based upon quantum meruit. Ham v. Morris, 711 S.W.2d 187 (Mo. banc 1986).

Not only must there be compliance with a listing agreement, the broker must also prove the necessary causal connection between the sale and the broker’s efforts. “A broker is not entitled to recover a commission when his efforts merely produced one event in a chain of actions which contributed to a sale of the listed real property. His efforts must be the primary, predominant, efficient, or procuring cause of the transaction or transfer.” D. Burke, supra, at § 3.4 (emphasis added). E.g., Zabol v. Lasky, 555 S.W.2d 299, 304 (Mo. banc 1977); E.A. Strout Realty Agency, Inc. v. McKelvy, supra, [424 S.W.2d 98] at 101-04. In Kohn v. Cohn, 567 S.W.2d 441 (Mo.App.1979), the court stated this general rule:

The broker has the burden to prove that an employment relationship existed between the owner and himself and that he was the efficient or procuring cause of the sale. If both the contract and the causation are established, the broker is entitled to reasonable compensation for his services. Smith v. Piper, 423 S.W.2d 22 (Mo.App.1967); Ballentine v. Mercer, 130 Mo.App. 605,109 S.W.2d 1037 (1908). In the absence of a contract of employment between the broker and the owner, the owner is not obligated to pay a commission even if the broker was the efficient cause of a sale which is later consummated. Windsor v. International Life Ins. Co., 325 Mo. 772, 29 S.W.2d 1112 (1930); Longmire v. Diagraph-Bradley Stencil Mach. Corp., 176 S.W.2d 635 (Mo.App.1944); Ballentine v. Mercer, supra. See also Restatement (2d) of Agency § 442, comment (a). A broker who is a mere volunteer is entitled to no compensation for services gratuitously rendered. A contract of employment is the essential element for recovery. Hoover v. Whisner, 373 S.W.2d 176 (Mo.App.1963).

Ham v. Morris, 711 S.W.2d 187, 190 (Mo. banc 1986) quoting Kohn v. Cohn, supra, at 446 (footnote omitted).

The principal opinion ignores the reality of the world of real estate and instead of letting the real estate salesman arbitrate the question of who was the procuring cause of the sale and who is entitled to the commission, it makes every seller of real estate subject to questionable suits based on a theory of quantum meruit.

Under Ham, I do not believe a submissive case is made. The cause should be reversed outright.