Christian v. McDonnell

BROADHUS, P. J.

The plaintiff’s suit is for conn mission for the alleged sale of certain of defendant’s lands in Atchison county, Missouri. He claims that his contract with defendant was, that, if he could pro? cure a purchaser for the land he should receive as his compensation all in excess of $8,000, that the purchaser would offer to pay; and that the terms upon which he was to contract with the purchaser was a payment of $1,500 cash and the residue on or before March 1, 1908. This contract was alleged to have been made in April, 1906, which he claims was modified in March, 1907, so as to give defendant the privilege of renting the land for the year 1907, in which event plaintiff was to dispose of the rent as an inducement to obtain a purchaser and to augment the purchase price.

He claims that he procured a purchaser for the land on the 29th day of March, 1907, for the sum of $10,156.25, of which sum $2,000 was paid in cash, $390.62 was credited on account of defendant retaining the rents instead of turning them over to the purchaser, and the balance of said sum made payable March 1,1908.

The defendant claims that some time in the early part of the summer 1906, that he informed plaintiff that he would take not less than $8,000 net for his land, and that at different times during that, year and the following winter plaintiff spoke as if he thought he could buy or find a purchaser for it. And further that he never gave plaintiff any exclusive option on the land or its sale and reserved the right to sell it himself; that he made a sale of the land without the intervention of plaintiff, and that at no time did plaintiff introduce to him any prospective purchaser. The cause was submitted to a jury which returned a verdict for the plaintiff, which on motion of defendant the court set aside and the plaintiff appealed.

The plaintiff’s evidence tended to prove the contract as alleged and that it was through his efforts that a purchaser for the land was found. On the other hand defendant’s evidence tended to prove that it was not through plaintiff’s efforts the land was sold. The court sustained the motion for a new trial on the ground of error in giving in plaintiff’s behalf instructions numbered 2, 3 and 4. The court assigned as reason for its action that, instruction two ignored “the question as to whether or not plaintiff’s alleged efforts to sell the land or find a purchaser had not been abandoned, or his agency revoked before defendant and purchaser met.” The instruction was clearly wrong as there was evidence that plaintiff’s agency had been revoked before defendant had begun negotiations, while that of plaintiff tended to show that such revocation was made with the knowledge that it was through plaintiff’s efforts the purchase was made. It was a question for the jury and not for the court.

Instruction numbered three was subject to the defect pointed out by the court as it “assumed as a fact the disputed contention that the. plaintiff had negotiated with the purchaser for a sale of the land before defendant met him.” On this question the defendant’s evidence, was to the effect that plaintiff had not as a matter of fact negotiated with Bovell Million the purchaser, but with his father Wm. Million. Bovell states, that, his father first went to see the land, but did not like it, and that he of his own accord went upon the land and bought it; and that he never had any communication with plaintiff in reference to the matter, either before or after the sale. With such evidence we cannot see how the court could have acted otherwise, when attention was called to the error.

Instruction four was erroneous for a reason similar to that noted as to instruction numbered two.

Defendant insists that the appeal should be dismissed for failure of plaintiff to file a proper abstract and statement. Both are defective. They are nearly always so. But as enough appears in them to compel an affirmance of the action of the trial court, we have concluded to overlook their defects.

Affirmed.

All concur.