Staehlin v. Kramer

GOODE, J.. — This action was instituted to recover a commission alleged to he due appellant from respondent for the sale of a parcel of real estate. The defense is that appellant did not effect the sale. Respondent was a widow living on Dickson street in St. Louis, hut, as we understand, conducting a barber shop at No. 2025 Market street, which was the property sold. It was bought in October, 1904, by Maurice Lipschitz. Staehlin, who was a real estate agent, asserts that he found the purchaser, directed his attention to the property and made him acquainted with respondent. Staehlin swore substantially as follows: A year or more before the sale respondent asked him if he could sell her property, saying her price was $7,500. Knowing Lipschitz was wanting to buy some property on Market street, appellant called his attention to respondent’s premises and in July, 1904, took him to her home and introduced him. Mrs. Kramer raised her price to $9,500, which Lipschitz refused to pay. After a negotation extending over several weeks, Mrs. Kramfer finally agreed to sell for $8,250, which Lipschitz paid and the property was conveyed to him. Appellant’s testimony was corroborated by that of his daughter. Mrs. Kramer testified that about four years prior to the sale, while she was in front of her home one day, Staehlin passed and asked her if she would sell her Market street property. She said she would if she could get her price, which was $7,500; Staehlin told her he could sell it for her in two weeks and would ask three per cent commission, and she told him it would be all right. She heard nothing from Staehlin until about two years before the sale occurred, when he came again to her home on Dickson street, introduced his daughter and asked if respond 331 ent had yet sold her property. She told him she had not and did not want to sell because her oldest son had married, was doing well and she wanted to live on the property with her daughter. Staehlin saw her once after that and said he could not get a buyer and she said all right, she was not anxious to sell. She swore that she never saw Staehlin again until after the property was sold. She admitted that Staehlin brought Lipschitz to her house several years before the sale, but nothing resulted from that visit, and she never saw Lipschitz again until Mr. Hoig, the agent whn actually sold the property, brought him to her on August 30, 1901. Respondent paid Hoig a commission for the sale. Hoig testified to taking Lipschitz to see. Mrs. Kramer and making the sale. It will be seen that the testimony regarding Avho procured the purchaser and sold to him was contradictory; that for appellant going to show he Avas the procuring cause; Avhereas, that for respondent was that appellant had nothing to do with the matter. The court gave instructions reflecting the two phases of the case. At the instance of appellant the jury were told that if respondent, more than a year before the sale authorized appellant to find a purchaser and was aAvare that apellant was making continued efforts to procure one and did not revoke his authority, and pursuant to such authority appellant made Lipschitz acquainted with the property and the terms on which it might be obtained, introduced Lipschitz to respondent and in consequence of appellant’s effort Lipschitz was induced to buy while appellant was still acting as respondent’s agent, appellant was entitled to recover, even though it was sold at a less price than appellant wa$ authorized to sell, and though respondent herself, or through another agent, made the sale. In another instruction the jury were told that if respondent employed appellant to sell and agreed to pay him a commission for his services,' and appellant while still acting as 332 agent; procured, a purchaser for $8,250 and the property was sold to- said purchaser for that sum, the verdict should be for appellant. The court instructed further that if respondent authorized appellant to find a purchaser and the latter took a purchaser to see the property and introduced him to respondent, the fact that the sale was made by respondent herself or through another agent would not bar appellant’s right to his commission. For respondent the court instructed that the burden was on appellant to establish by a preponderance of the evidence, that he was employed to sell the property and pursuant to said employment performed the services which are the basis of the suit; that if the jury found respondent employed appellant to sell her premises and, at the time of the employment, no period was agreed on during which the agency should continue, appellant’s agency would continue and be in force for a reasonable time after such employment, considering all the circumstances in evidence; and if the jury found a reasonable time thereafter elapsed without a sale of the property by appellant, and respondent, after the lapse of such time, in good faith and without the purpose of avoiding the payment of a commission to appellant, sold the property to a purchaser with whom appellant had been negotiating, the verdict should be for respondent. Another instruction was of similar tenor and informed the jury that if no time'was agreed on in which appellant might act as respondent’s agent for the sale of the property, it was incumbent on appellant to find a purchaser ready, willing and able to buy at the price authorized, within a reasonable time. Another instruction was that if respondent employed appellant to sell the premises three or four years before the sale actually occured, and during a month or two subsequent to the employment appellant found ho purchaser, and at the end of said period it was agreed between the parties that appellant’s authority to act as 333 respondent’s agent should cease, and thereafter respondent never employed appellant again to act as her agent, and the property was sold in October, 1904, to Lipschitz and appellant had had no negotiations with Lipschitz for the sale of the property for two years or more prior to the sale, the verdict should be for the respondent, even though appellant had introduced Lipschitz to respondent and called his attention to the property. We think those instructions fairly presented to the jury the essential issues of fact in the case. Tho'se given at the instance of appellant submitted the facts in accordance with his testimony, which in effect was that he drew Lipschitz’s attention to the property, opened negotiations with him for the sale of it and continued to negotiate until the sale was accomplished. The radical divergence between the evidence for appellant and that for respondent was in relation to when appellant began negotiations with Lipschitz and whether or not they continued practically until there was a sale. According to Staehlin, he took Lipschitz to respondent’s home in July, 1904, began then to negotiate with him for the sale and gradually induced Mrs. Kramer to reduce her price until she was willing to take what Lipschitz would pay. Respondent’s testimony on the contrary, was that Staehlin brought Lipschitz to her two years before the sale occurred, which visit proved futile and she saw nothing more of Lipschitz until the last of August, 1904, when Mr. Hoig brought him to see her and the result of this interview was that Hoig sold the property to Lipschitz. Staehlin did not assert that he was given an agency for a definite time and, of course, he was empowered to act only for a reasonable time and was bound to find a purchaser within it or leave respondent free to sell her propertypersonally or through some other agent. [LaForce v. University, 106 Mo. App. 517.] If his version of the affair was true, he found a buyer within a reasonable time and was entitled to a verdict. 334 The instructions recognized his right to a commission if that was the fact. But if respondent’s version was true, appellant certainly had no claim on her for a commission from the bare fact that two years before the sale was made he took Lipschitz to see her property. If appellant could recover under those circumstances, an owner of premises who once puts them into the hands of an agent for sale, could never afterwards sell to any person whose attention was drawn to the property by said agent, without paying the agent a commission. The court’s instructions were comprehensive and fair. It may be true that the verdict of the jury was for the wrong party and the outcome of prejudice, as appellant asserts; but the evidence falls far short of showing this was true with the degree of certainty which would justify us in setting aside the verdict. The testimony to support the defense was substantial and the judgment will be affirmed. All concur.