Gilmour v. Freshaur

GOODE, J. Plaintiff is a real estate broker in Pomona, Howell county,- Missouri, in which business he [300] wag assisted by a man named Frazier. Defendant owned a farm in the county which plaintiff had been authorized to sell. W. S. Newman came to Howell county to buy a farm for his wife as her agent, and was introduced to Gilmour. Gilmour told him of Freshaur’s place and arranged to visit it with him the next day after the one on which they met. Pursuant to this arrangement Gilmour and Newman drove out to the Frazier farm, which we understand to lie out from Pomona in the direction of, but beyond, defendant’s farm, so that the latter place was passed by Gilmour and Newman on the way to Frazier’s. Frazier induced Newman to stay all night with him with the understanding that the next morning the two would go to defendant’s farm and Gilmour would come out from Pomona and meet them there. Gilmour swore he notified defendant the same day he took Newman to Frazier’s, that Newman was a prospective purchaser. The next morning Newman and Frazier went to defendant’s place and were joined there’by Gilmour. Newman was introduced to defendant by either Gilmour or Frazier. According to the testimony of all the witnesses, including the defendant himself, he then and there offered to sell the farm to Newman for $3,000. Newman offered to pay $2,500. Defendant agreed with Gilmour, in a conversation apart from Newman, to take $2,800 net, and allow plaintiff any surplus above that price. Both parties swore to this; but defendant added that he told plaintiff if a sale could be made for $3,000, plaintiff might have a commission of five per cent. Defendant offered to throw in some farming tools if Newman would pay $3,000. No sale was effected at that time, but two weeks later Newman bought the farm for $2,875 from Willis & Preston, a firm of real estate agents at Willow Springs. According to plaintiff’s testimony he was prevented from making the sale by defendant’s telling Newman privately, that though defendant asked $3,000 for the farm, New [301] man could get it at a lower price if lie would see Willis & Preston; that Newman told plaintiff he had been willing to pay $3,000, but wanted to get the farm as cheap as he could. Newman swore that while in conversation with defendant at the latter’s farm, on the occasion when G-ilmour and Frazier were there with him, defendant told him (Newman) he could get the farm for less than $3,000 if he would call on Willis & Preston. Defendant denied saying this. Three declarations of law were requested by plaintiff, which set forth, in substance, the proposition that if defendant had authorized plaintiff to sell the farm, and plaintiff took Newman to the farm and opened negotiations between him and defendant, and while the negotiations.were in progress, defendant notified Newman that the latter could buy cheaper from another agency, and thereby negotiations were caused to be opened between Newman and such other agency, which finally terminated in a sale, plaintiff was entitled to recover the sum for which it was sold over $2,800, and the fact that defendant had paid such other agency for making the sale, did not change his liability to plaintiff. These declarations were refused. They are-sound law. The evidence shows without dispute that plaintiff, acting under authority from defendant, took Newman as a prospective buyer to the farm and put him into a negotiation with defendant, and that within two weeks Newman purchased from another agency. If Newman’s testimony is to be believed, this was because defendant referred him to said agency. But defendant could not avail himself of the services plaintiff had rendered pursuant to request, and then prevent -plaintiff from earning a commission by diverting the negotiation to another firm of brokers. [Brennan v. Roach, 47 Mo. App. 290.] Of course, if Newman abandoned the negotiation which plaintiff had brought about, because he and defendant could not agree on a price, plaintiff would not be entitled to a com [302] mission because, after this negotiation was completely broken off, Newman brought from another firm. But the evidence is very cogent that in the course of the negotiation started by plaintiff, defendant induced Newman to deal with Willis '& Preston by saying the farm could be bought from them at a lower price. The judgment is reversed and the cause remanded. All concur.