Wetzell & Griffith v. Wagoner

Smith, P. J. This was an action brought in the circuit court of Jasper county, by the plaintiffs, who were real-estate agents, against defendant to recover the sum of two hundred and twenty-five dollars’ commissions due them for selling defendant’s farm. At the trial and. after the evidence was in, the plaintiffs were permitted to file an amended petition, wherein they alleged a modification of the original contract sued on to the effect that the defendant agreed with them that, if they found a purchaser for his farm at about the sum of eight thousand dollars, he would pay them two hundred dollars if he effected a sale to the purchaser so found, and that defendant did sell his farm to one Shuler, a purchaser found by them, for that sum, etc. The answer was a general denial. The evidence tended to prove that plaintiffs showed the defendant’s land to Shuler and subsequently introduced him to the defendant. That defendant asked eighty-five hundred dollars for his farm which Shuler declined to pay for it. That defendant afterwards, according to his own testimony, told plaintiffs to go and tell Shuler that he would take eight thousand dollars for his farm, and if such sale was [514] made that he would pay them two hundred dollars’ commission. The witness Dietrich testified that at the request of plaintiffs he went to Shuler and told him that one of the plaintiffs, Griffith, had told him that the defendant’s farm could be piirchased at eight thousand dollars. A nephew of Shuler testified that shortly after Die trick’s visit the defendant met his uncle, and the purchase of. the land was agreed upon at eight thousand dollars by the defendant throwing in some farm machinery valued at three hundred dollars. The circuit court instructed the jury for plaintiffs in effect: First. That if the defendant employed plaintiffs to sell the farm upon commission, and if plaintiffs in pursuance of such employment procured or introduced a purchaser who bought the defendant’s farm, then the plaintiffs were entitled to their commission, even though defendant, after the introduction of the purchaser to him, went and hunted up some purchaser and made a different proposition from that which he authorized the plaintiffs to make, or sold to the purchaser at a less price either by throwing in personal property or otherwise; and, second, that if the plaintiffs showed the property to the purchaser and negotiated with him to purchase it, and introduced the purchaser to defendant, and that, in pursuance of such negotiations defendant finally sold said property to the purchaser so found and introduced, then plaintiffs were entitled to receive the price agreed to be paid them as commission on the purchase money — provided they find plaintiffs acted, in showing said farm and negotiating for its sale and introducing the purchaser to defendant, at his request; and the fact, that defendant finally made the purchaser better terms than he had proposed to said agent, would not deprive them of their right to commission, etc. The court for the defendant instructed the jury that “although they may find from the evidence that defendant placed his farm in the hands of plaintiffs for sale, and under an [515] agreement with them that if they sold the same to Shuler for eight thousand dollars or provided a purchaser at that sum he would pay them the commissions sued for, to-wit: Five per cent, on the first thousand dollars and two and one-half per cent, on the balance of said eight thousand dollars, yet, if plaintiffs did not sell said farm or procure or introduce a purchaser therefor, plaintiffs are not entitled to recover, and your finding should be for the defendant.” There were several other instructions which need not be set forth here, but which will be referred to presently. The verdict of the jury was for plaintiffs, and after an unsuccessful motion to set the same aside judgment was rendered, to reverse which defendant prosecutes his appeal. I. The defendant’s first contention is that the trial court erred in permitting plaintiffs at the conclusion of the evidence to amend their petition. It was proper to permit the amendment of the petition so as to make it conform to the facts proved. R. S., sec. 3567; Blair v. Railroad, 89 Mo. 383. This amendment, not changing the substantial issues between the parties was within the limit of the statutory rule allowing amendment of pleading and besides, if it was not, the defendant omitted to show by affidavit wherein he was misled or prejudiced by it, and consequently he is in no situation to complain of that action of the court in respect to that matter. Burnett v. McCause, 65 Mo. 194; Gaty v. Sack, 19 Mo. App. 470. II. As to the second ground of defendant’s appeal, it is sufficient to say that if the plaintiffs’ second instruction is considered in connection with their first, it will be seen that there is no assumption by the court of any issuable fact. The instructions must be viewed in their entirety. If thus considered, and they fairly embody the law of the case, they will not be subject to objection, though any one of them standing by itself may be exceptionable. Railroad v. Vivian, 33 Mo. [516] App. 583; Muehlhausen v. Railroad, 91 Mo. 332; Bailey v. Railroad, 94 Mo. 600. III. The defendant’s first and fifth, instructions, which told the jury, in effect, that if defendant agreed to give plaintiffs a particular sum in case they sold his farm at a specified price, and that if plaintiffs did not sell it or procure a purchaser 'therefor at that price, the plaintiffs could not recover, were improper. The rule declared in these instructions was too narrow in its scope. Its effect is to ignore the well-established principle that when property is placed in the hands of a real-estate agent for sale he is entitled to his commission, if he brings about the sale by his exertion, or if he introduces the purchaser, or gives his name, whereby the sale be perfected by the principal, even though the owner vary the terms from the first negotiations. Beauchamp v. Higgins, 20 Mo. App. 514; Bell v. Kaiser, 50 Mo. 150; Tyler v. Pane, 52 Mo. 249; Millan v. Porter, 31 Mo. App. 563. In this case the plaintiffs showed the defendant’s farm to the purchaser, introduced him to defendant and by his direction had offered the purchaser the farm at a price he named; the defendant after this met the purchaser and modified the proposition which he had made through his agents, so as to make it acceptable to him. These directions instructed the jury that unless the sale was effected at the price which the plaintiffs were directed to offer the farm for, they were not entitled to commission notwithstanding the defendant made the sale by taking a slightly less sum than he had directed the plaintiffs to offer the property for. It would indeed be a singular hardship on the plaintiffs if after their successful efforts in bringing about this sale they should receive no compensation, solely because the defendant agreed himself with the purchaser to take a less sum than he had offered, through the plaintiffs, his agents, to take in the first instance. It would be quite difficult to conceive of [517] a principle that would give sanction to such rank injustice. IY. The defendant’s third and fourth instructions were substantially the same as the one the court gave the defendant, and for that reason were not improperly refused. Y. The defendant’s sixth and seventh instructions made plaintiffs’ right to recover commissions for their exertions, in bringing about the sale, dependent solely upon the fact whether they actually sold the farm themselves. These instructions are obnoxious to the principle announced in the cases cited by us in noticing defendant’s first and fifth instructions in a preceding paragraph of this opinion. YI. The evidence does not tend to show, as the defendant seems to suppose, the services rendered by plaintiffs to have been voluntary and gratuitous, but on the contrary tends to show that the same were undertaken and performed under an agreement for compensation to be paid by defendant. The verdict was clearly for the right party. No error prejudicial to the defendant being perceived in the record before us, the judgment is affirmed. All concur.