Millar & Abbott v. Porter

I. Hall, J. Under the instructions given in the case the jury could not have found for the plaintiffs without finding also that the defendant did not at the time of employing the plaintiffs instruct them to sell the property for cash. The verdict of the jury in favor of plaintiffs is binding upon us as to all facts necessarily found by the jury in order to reach the verdict, and to prove which there was sufficient evidence. As to what instructions the defendant gave as to the terms on which the property should be sold the defendant and plaintiff Abbott disagreed. Abbott testified that the defendant named only the price, four thousand dollars; the defendant testified that he in addition to the price designated the manner of payment to be cash. There was, therefore, sufficient evidence to support the finding of the jury in this respect, and we are bound by it. This case is, then, to be 'treated by us as if the defendant instructed Abbott to sell the property for [575] four thousand dollars, saying nothing more, nothing as to the mode or time of payment. Such being-the case the defendant takes the position, advanced in some of the instructions asked by him, that the law presumes that the price of the property was to be paid in cash, and that the case is just the same as if he had instructed the plaintiffs to sell for the price in cash. To this position we cannot agree. Since the defendant fixed only one term of the proposed sale, all the' other terms were left open to be afterwards fixed by him at his pleasure. He indeed had the right to demand the payment of the entire purchase price in cash, and to make this demand even after the plaintiffs had produced a purchaser ready, able, and willing to buy the property at the price named on other terms than a cash payment. But, until .the demand for a cash payment was made, the plaintiffs were not limited to such a payment; they were only required by their contract to find a purchaser at the price fixed by the defendant on such terms in other respects as might be agreeable to defendant. II. As to the second defence mentioned in defendant’s brief, the abandonment by plaintiffs of the contract to sell the property, there was no mention in any of the instructions asked by the defendant. Without holding that, in this case, such fact would excuse the failure of the plaintiffs’ instruction to notice said defence, if that failure were otherwise erroneous, we hold that under the evidence in this case it was not erroneous. In our opinion there was no evidence tending to prove that the plaintiffs abandoned the contract. W e have set out in the statement of facts all the evidence bearing on this question. It shows, we think, that so far from abandoning their contract the plaintiffs, up to a few hours before the consummation of the sale through their Mr. Abbott, interested themselves in the pending sale of the property; and that if the final visit [576] by the proposing purchaser, which resulted in the sale, was not, as testified by Abbott, made to the defendant at Abbott’s request, it at least was made with his knowledge and on his advice, ‘! that he thought it would be very well,” as testified by the purchaser Shumaker. III. The defendant’s counsel contend that it was the duty of the plaintiffs under their contract to make an actual sale of the defendant’s property, and that by procuring a proposing purchaser who negotiated and completed a purchase of the property on the terms named by the defendant they did not comply with their contract. This contention is not well made. The plaintiffs were employed simply as real estate brokers. There was nothing peculiar in the contract employing them. As brokers they were to procure a purchaser on the defendant’s terms and bring the two together. They did not have to negotiate the trade; they did not have to make the actual sale. Keys v. Johnson, 68 Pa. St. 43; Tyler v. Parr, 52 Mo. 249; Woods v. Stephens, 46 Mo. 555; Timberman v. Craddock, 70 Mo. 638; Bell v. Kaiser, 50 Mo. 150; Goffe v. Gibson, 18 Mo. App. 1; Gaty v. Sack, 19 Mo. App. 477. IY. The fact that the defendant did not know, at the time of making the sale to Shumaker, that the latter had been procured by the plaintiffs is immaterial. The right to a recovery by the plaintiffs depended upon the fact that they had procured the purchaser, and not upon the knowledge on the part of the defendant of that fact at the time of the sale. Tyler v. Parr, 52 Mo. 250; Goffe v. Gibson, 18 Mo. App. 4. Y. We have omitted the consideration of an objection made to the instruction given for the plaintiffs, and we [577] revert, in order to consider that objection, to the subject of the first paragraph of this opinion. Defendant’s counsel state that it was contended, on the one hand, that the agent was instructed to sell the property for four thousand dollars, all cash, and, “ on the other hand, that nothing at all was said about cash, or the terms of paying the purchase money.” The counsel then urge, “that this sharp issue, the main one in the case, is wholly ignored” in the instruction given for the plaintiffs. We think that this is a mistake. In the plaintiffs’ instruction, their right to a recovery is based upon the defendant’s promise to pay'them one hundred dollars “if they would find some person who would purchase the premises in proof at the price of four thousand dollars,” and the fact that they found “such person ready and willing to purchase at that price.” The defendant’s side of the issue is not ignored, but the plaintiffs’ right to a recovery is squarely based upon the jury finding in favor of their side of the issue. All doubt on the subject is removed by instruction “(a)” given on the court’s own motion, which plainly tells the jury that, if they find that the defendant did instruct the agent to sell for cash at the time he employed plaintiffs, they should find for the defendant, if the plaintiffs ‘ ‘ were unable to sell to Shumaker except for part cash and part credit.” Under these instructions the jury must have understood the plain issue of fact. They could not have been misled. And their verdict must be considered as resting upon the finding by them of the issue in favor of the plaintiffs, because there is no pretense that Shumaker would pay all cash VI. ( In the light of the facts of this case, then, which are"fixed by the verdict of the jury, and as to which there was no conflict of evidence, the case may be thus stated: The defendant employed the plaintiffs to sell his property at the price of four thousand dollars, on such [578] terms as the defendant might name ; the plaintiffs found Shumaker, who was ready, willing, and able to purchase at that price, on these terms, i. e., fifteen hundred dollars cash, the balance in six months and one year ; the defendant refused to sell on the terms proposed, and demanded all cash; the defendant’s refusal and demand were reported to Shumaker, who at first declared that the defendant’s course ended the matter, but who after-wards, either at the request of one of plaintiffs or with his knowledge and advice, called on the defendant in order himself to agree with him on terms ; this visit to the defendant was made on the day after the negotiations began, and resulted in a sale by defendant to Shumaker on the terms first proposed by the latter with the addition of a provision that the defendant could have the unpaid part of the purchase money at any time before it was due that he should wish it. Such being the case, in our opinion, the plaintiffs were entitled to recover, and the judgment was for the right party. The defendant was furnished by plaintiffs with a purchaser on terms agreeable to himself ; and the brokers earn their commission. Judgment affirmed. All concur.