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Jennings v. Overholt.

Angell would part with the eighty acre tract. This plaintiff testified that defendant told him to "go ahead and push the deal," and that he thereupon, in defendant's presence, made an entry of the matter in a small book which he carried in his pocket, and that on the same day he wrote Angell in regard thereto. This letter, which merely refers to an exchange of Angell's "place" for land near Plainview, Texas, was introduced in evidence.

It appears, both from the testimony of plaintiff, L. C. Jennings, and from that of Angell's son, that upon recepit of the last-mentioned letter Angell had his son call this plaintiff by telephone and ask him to bring the defendant to see Angell's property. And the testimony of this plaintiff is, that he tried to reach the defendant by telephone during the next two days, without success, and then called Angell by telephone saying that he had not been able to reach the defendant but that he would go by defendant's house and try to get him, whereupon Angell said that the defendant was then at his house; that Jennings then said that he would come to Angell's house, but was told that this was unnecessary. It appears that the defendant and Angell promptly entered into a tentative agreement for the exchange of defendant's land in Texas for the eighty acre tract belonging to Angell; that the latter at once left for Texas to inspect defendant's property, and that upon his return the trade was consummated.

Angell testified that he first heard of defendant through the plaintiffs; and that during his negotiations with defendant the latter "put up a plea" that he might have to pay plaintiffs a commission. And his further testimony, as well as that of another witness and that of plaintiff, L. C. Jennings, tended very strongly to show that defendant expected to be charged a commission by plaintiffs, and understood that he was liable therefor, but that in the end he objected to the amount of the same.

Jennings v. Overholt.

There was evidence that the usual commission for the sale or exchange of such Texas lands was $1 per acre. After the consummation of the trade plaintiffs demanded a commission of $320, which defendant declined to pay, and this suit was instituted to recover the same.

Defendant testified that he "never considered" that he listed his land with plaintiffs, and that he did not agree to pay them a commission. He admitted his prior dealings with plaintiffs, and that on March 29 plaintiff, L. C. Jennings, suggested a trade with Angell, but said that Jennings only mentioned Angell's fourteen acre tract, and that plaintiffs had nothing to do with the deal made for an exchange of defendant's land for the eighty acre tract. Some testimony was adduced to the effect that defendant had previously heard that Angell was intending to move to Texas, and might want to trade for Texas land, but if this be true it is certain that defendant did not act upon such information at all prior to March 29, 1912, when plaintiffs suggested a trade with Angell, and that almost immediately thereafter defendant saw Angell and consummated the exchange.

The theory of the defense was, that defendant was not liable to plaintiffs in the premises, if the latter, in suggesting a trade with Angell, mentioned to defendant only the fourteen acre tract and if their efforts in respect to a trade with Angell were directed only to an exchange of defendant's land for this fourteen acre tract. This theory the court adopted and pursued in submitting the case to the jury. One instruction requested by plaintiffs was refused, as requested, but was given after being modified so as to tell the jury that plaintiffs could not recover unless it was found "that plaintiffs' effort to bring about an exchange of land between defendant and Angell related only to the fourteen acre tract and not to the eighty acre tract." And an instruction requested by

Jennings v. Overholt.

plaintiffs was refused which allowed a recovery, upon a finding of certain facts, though defendant took in exchange for his land other land belonging to Angell than that mentioned to him by plaintiffs. And the two instructions given for defendant proceeded upon the above-mentioned theory adopted by the court.

It is unnecessary to set forth these instructions in detail, for the reason that it is quite clear that the court's rulings with respect to the giving and refusing of instructions were based throughout upon an erroneous impression of the law applicable to the situation in hand. And it is clear that the argument here advanced by learned counsel for respondent in support of the court's rulings in the premises is unsound.

The evidence is abundant that defendant engaged plaintiffs to find someone in the vicinity of Centralia with whom he might make some trade or deal whereby to dispose of his Texas land. And the evidence is al- most, if not, conclusive, that plaintiffs' efforts in the premises were the procuring cause of the trade actually consummated by the defendant.

In Dillard v. Field, 168 Mo. App. 206, 153 S. W. 532, it is quite well said by TRIMBLE, J.: "In order to solve the puzzling and sometimes difficult question whether an agent is entitled to his commission, two questions should be steadily kept in mind: (1) What was the agent authorized or employed to do? (2) Has he completed his undertaking?'"' In the case before

us it is quite clear that plaintiffs were not employed under a special contract requiring them to dispose of defendant's property upon certain prescribed terms, nor in fact to consummate any deal. Where a special contract exists, it is elementary that the broker must show that he has fully complied with the terms and conditions thereof before he is entitled to recover, for otherwise he has not completed his undertaking and has earned no commission. In such a case the owner may, in good faith, insist upon the exact price, or the

Jennings v. Overholt.

fulfillment of other terms of the contract, and refuse to make a sale to the broker's customer on any modified terms; and if the broker fails to perform, after being allowed full opportunity so to do, the owner may in fact thereafter, as a new deal, sell the property to the broker's customer on more favorable terms, without incurring liability to the broker. [Blackwell v. Adams, 28 Mo. App. 61; LaForce v. Washington University, 106 Mo. App. 517, 81 S. W. 209; Tooker v. Duckworth, 107 Mo. App. 231, 80 S. W. 963; Stevens v. Bacher, 162 Mo. App. 284, 141 S. W. 1143; Hughes v. Dodd, 164 Mo. App. 454, 146 S. W. 446; McCormick v. Obanion, 168 Mo. App. 1. c. 615, 153 S. W. 267.] But even in such cases if the owner chooses to deal with the broker's customer at a lower price or upon other terms, while the broker's agency remains unrevoked, and he is still working with his customer at the price and upon the terms named to him, the owner will be liable to the broker for commissions upon a sale so consummated by him with the broker's customer. [See Wetzell & Griffith v. Wagoner, 41 Mo. App. 509; Larow v. Bozarth, 68 Mo. App. 407; Grether v. McCormack, 79 Mo. App. 325; Nichols v. Whitacre, 112 Mo. App. 692, 87 S. W. 594; Hovey & Brown v. Aaron, 133 Mo. App. 573, 113 S. W. 718; Lane v. Cunningham, 171 Mo. App. 117, 153 S. W. 525.]

In the instant case the terms of plaintiffs employment were of the most general character. The evidence is that defendant, both by correspondence and orally, solicited plaintiffs' services in the premises; but there is no pretense that plaintiffs were limited by any special contract requiring them to effectuate a disposal of defendant's property upon any stipulated terms. Indeed the evidence adduced in behalf of both plaintiffs and defendant shows clearly that what defendant desired plaintiffs to do, and what they undertook to do, was to find someone in the vicinity of Centralia with whom defendant might be able to make

Jennings v. Overholt.

some sort of a trade for his Texas land.

Plaintiffs'

undertaking was merely to put defendant in touch with someone with whom he might consummate such a trade. Plaintiffs were not authorized to consummate any deal themselves, but were to direct their efforts to finding someone who would consider exchanging land in that vicinity for defendant's property, leaving it to defendant to make a deal satisfactory to himself if he could. The evidence is that defendant contemplated that it might be necessary for him to assume an indebtedness, in making an exchange, or that there might be a cash difference, one way or the other, between the properties to be exchanged; and much, of course, would depend upon the location, character and value of the Missouri land, and the price at which it was held. With these matters plaintiffs had naught to do; but it was for defendant to make his own bargain, in case plaintiffs found a prospective trader.

Defendant, by letter, had originally stated to plaintiffs that he held his land at $23 per acre. In trading with Angell he put in the 320 acres at $25 per acre (a total of $8000), and took Angell's eighty acres at a valuation of $100 per acre. Under the circumstances of plaintiffs' employment, it was wholly immaterial whether defendant thus traded for the eighty acres, or took Angell's fourteen acres and the cash difference, or sold his land to Angell for cash, or made some other trade with Angell. In any event, if plaintiffs' efforts resulted in finding a customer with whom defendant could deal and were the procuring cause of the trade ultimately consummated, plaintiffs had earned their commission. [See Perry v. Edelen, 181 Mo. App. 498, 164 S. W. 645; Lane v. Cunningham, supra; Grether v. McCormick, 79 Mo. App. 325.]

It follows that the court's rulings as to the instructions were highly prejudicial to plaintiffs, and necessitate a reversal of the judgment.

186MoApp33

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