Bird v. Blackwell

ELLISON, J. This action is for damages alleged to have accrued to plaintiff by reason of defendant’s refusal to consummate an exchange of lands with a third party, whereby plaintiff lost his commission which was to be paid by the third party. The verdict was for the plaintiff. But afterwards the trial court sustained defendant’s motion for a new trial, on the ground that the plaintiff failed to make a case for the jury. Plaintiff thereupon .appealed’ to this court from that order. Since the verdict was for the plaintiff, we must assume as the facts of the case all that the evidence in his behalf tends to prove. While not going into the facts in specific detail we will state them in sufficient substance. It appears that defendant and one Ashbrook were each the owner of a tract of land and that defendant [27] authorized and employed plaintiff to bring about an exchange of these tracts. That plaintiff brought the parties together and it was agreed by and between the three that Ashbrook should pay plaintiff his commission and not look to defendant therefor. That the terms of the exchange were agreed upon and Ashbrook was willing and ready to perform on his part, but that the defendant without legal cause or excuse refused to consummate the exchange, and, in consequence, none Avas made, and plaintiff was thereby deprived of the commission which he was to receive. In our opinion this state of facts gave to plaintiff a right of action against defendant. There was no cause of complaint against Ashbrook as he was in no way in default. Plaintiff fulfilled his part of the agreement and he was deprived of reaping his compensation by the wrongful act of the defendant in refusing to carry out that part devolving upon him. But for the contract that plaintiff was to get his commission from Ashbrook there would be no doubt that plaintiff could have recovered such commission from defendant, for he did all that he was required to do in the performance of the agreement on his part. [Wright v. Brown, 68 Mo. App. l. c. 583: Purdy v. Wilson, 130 Mo. App. 150 108 S. W. 1124.] We have not overlooked the suggestion that defendant’s refusal to consummate the exchange was said to be on account of his wife’s refusal to join in the deed. That is no excuse for breaking a contract which contains no provisions of that character. [Young v. Ruhwedel, 119 Mo. App. 241; Curry v. Whitmore, 110 Mo. App. 204.] There was no writing in the entire matter and the statute of frauds has been invoked by defendant. We think that statute has no application. An agreement for the sale or exchange of lands is required to be in writing in order to be enforced between the parties (section 3418, Revised Statutes 1899) but it is not a [28] wrongful agreement if made without, writing. It may still be lawfully performed if the parties will voluntarily do so. So, though the verbal agreement between Ashbrook and defendant could not be enforced by the former against the latter on his refusal to comply, yet that fact does not deprive plaintiff of his action for damages resulting to him on account of such refusal. There was but one instruction given for the plaintiff. It embodied every proper hypothesis in the case and is unobjectionable. There were several asked by defendant and refused. An examination of them discloses that no reversible error avrs committed in the action taken. The verdict was for the right party. The judgment will therefore he reversed and the cause is remanded Avitlx directions to enter judgment against defendant on the verdict. All concur.