McDonnell v. Stevinson

BROADDUS, J. This is a suit upon contract to recover $100 as commission for the alleged sale of defendant’s farm. The petition alleged that a contract was entered into between plaintiff and defendant whereby defendant agreed to pay plaintiff said sum, provided plaintiff found a purchaser for the land at the price of $5,000. There was evidence that plaintiff, who resided in Hallsville, Mo., was a real estate broker; that he had negotiations with a man by the name of Ryman, who was willing and able to purchase defendant’s land at the price above mentioned; that plaintiff brought said Ry-man and defendant together on the twelfth of August, 1902, at which time Ryman wanted to know of defendant if he would give him until Saturday following to close up the deal; that defendant would not give him such time to close the deal but consented-to give him until the following Friday, August 15, at noon to do so. In the meantime, however, the land was sold to another person by the name of Pemberton, the sale being made through the agency of a Mr. Smith, a real estate broker who also had the farm for sale. There was other evidence but it is not pertinent to the issue raised by the record. A jury was waived and the cause was tried by the court. The finding and -judgment was for defendant, from which plaintiff appealed. The plaintiff asked several instructions based upon the theory that if plaintiff produced a purchaser for the land at the agreed price who was able and willing to buy, then he was entitled to recover.- These the court modified by the following language: “Provided, plaintiff has shown that defendant agreed to pay plaintiff one hundred dollars for making such sale, as averred in his petition.” [195] Defendant asked no instructions. It is apparent that the court found against plaintiff on the ground that he had sued on a contract, and had failed to prove it. The plaintiff earnestly contends that as the evidence shows that he did produce a purchaser able and willing to take the farm at the agreed price he was-greatly injured by the judgment of the court. We are impressed with the fact that there is much equity on plaintiff’s part. But it was a case at law and as such we must view it. When the petition counts on contract, there can be no recovery of quantum meruit. Lumber Co. v. Snyder, 65 Mo. App. 568; Eyerman v. Cemetery Assn. 61 Mo. 489. The rule is different where the suit originated before a justice of the peace. See Walker v. Guthrie, 102 Mo. App. 420. The plaintiff having failed to prove his contract, he was not entitled to recover on quantum meruit. The cause is affirmed. All concur.