Opinion
No. 7087.
January 22, 1953.
APPEAL FROM THE CIRCUIT COURT, STODDARD COUNTY, JAMES V. BILLINGS, J.
R. F. Baynes, New Madrid, and Briney Welborn, Bloomfield, for appellant.
Merrill Spitler, New Madrid, for respondent.
This is an action for real estate brokers' commission. Judgment, upon the jury's verdict, was rendered for defendants and the brokers appealed.
A. T. Earls, Lewis W. Stone and Norval W. Duncan were real estate brokers, duly licensed and having offices at Bragg City, Lilbourn and Kennett, Missouri. Fred M. Copeland was a real estate broker and John Leigh was his agent. They had offices at New Madrid. George Wise and A. L. Clark owned the farm that was sold. About the middle of 1950, they listed the farm for sale with Fred M. Copeland at the price of $225 per acre. Shortly thereafter Copeland talked to P. M. Barton, trying to sell him the land and Barton, though interested, said the price was too high. On December 4, 1950, a listing of this farm was again given broker Copeland, this time in writing, and the price was reduced from $225 per acre to about $210 per acre. On December 24, 1950, a written contract of sale was entered into between wise and Clark and P. M. Barton through John Leigh, the agent of Copeland, and pursuant to this agreement, the sale was closed, deeds executed and the farm paid for on January 11, 1951. This listing with Copeland was not exclusive and during the latter part of December, 1950, Wise, acting for himself and Clark, listed the farm with Mr. Stone, one of the plaintiffs. This listing was also not exclusive and Stone was informed of the listing with Mr. Copeland. On that day plaintiff Stone called Barton by telephone, told him of the farm and Barton said he already knew the country and would look at the farm, but thought it was priced too high. At one time previous to these transactions, plaintiff Stone had listed this farm for sale, had interested a prospective purchaser, chaser, but Mrs. Wise refused to sign the deed and the transaction fell through. After the sale of the farm to Barton through agent Leigh, the commission was paid in full to Copeland. The plaintiffs brought this suit for the commission, asserting that they had produced a purchaser who was ready, willing and able to purchase the property on the terms set by defendants, that it was sold to this purchaser and that they were entitled to a commission of $2,000. Plaintiff Stone testified to conversations with wise a few days after the farm was listed with him in which Wise was alleged to have said regarding the sale to Barton, "Well, I guess I have done wrong * * * but I just done it." But this conversation, inferentially at least, was denied by Wise.
At the close of all the evidence, defendants moved for a directed verdict upon the ground that plaintiffs' evidence had failed to sustain the allegations of their petition. Plaintiffs moved for a directed verdict because "under the evidence, the defendants are not entitled to recover, but the verdict should be in favor of plaintiffs." Each of these motions was overruled. The case was submitted to the jury and a verdict was returned in favor of defendants. From that verdict, the plaintiffs have appealed.
Appellants contend that the court erred in not directing a verdict for them in the sum of $2,000. They assert that the evidence is all one way and in their favor and they were entitled to a verdict as a matter of law. We think it was a question for the jury.
The land was orally listed with Copeland first and Copeland contacted Barton first. Barton was interested but dissatisfied with the price, he thought it was too high. It was again listed with Copeland on the first day of December, this time in writing. Later in the month of December, the evidence is not positive as to the date Wise listed it with plaintiffs, at the same time telling them that it was listed with Copeland. On that day, plaintiff Stone called Barton, offered to show him the land and told him the then asking price. Barton merely stated he was familiar with the country, thought the price was too high, but would look at it. Barton then tried to call Copeland, could not get him but did talk with his agent Leigh at Parma. He asked about farms generally and then asked about this particular farm. Was this call the result of his conference with Stone or because Copeland had first tried to sell him the land? He was then talking to the brokerage firm that had first contacted him about the land and with whom it had been first listed. Mr. Leigh took him to see it and he finally decided to purchase and did purchase. The defendants paid the commission to Copeland because they had twice listed it with him before they had listed it with plaintiffs and Copeland was the first man to contact purchaser Barton. Copeland's firm brought Barton to them, prepared the contract and deed and consummated the sale. The most that could be said, as we view it, is that it was for the jury to decide who actually procured the purchaser, or, in other words, was the efficient and procuring cause of the sale.
Each case of this character depends upon its own particular facts. We have read the many authorities cited by appellants and we have no quarrel with the principles of law declared in them, but in none of them are the facts the same as in this case. The case was properly submitted to the jury as to whether plaintiffs were the procuring cause of the negotiations between defendants and Barton, which resulted in the sale, and the jury found against the plaintiffs. That is binding upon this court.
In Julius Haller Realty Co. v. Jefferson-Gravois Bank, Mo.App., 144 S.W.2d 174, 176 (cited by both appellants and respondents), the law was declared as follows:
"In other words in these cases where an owner appoints more than one broker to procure a purchaser for his property, the rule is to the effect that he who sows the seed and tills the crop is entitled to reap the harvest rather than one who volunteers to assist in tilling a crop, the seed for which he has not sown. The question of whether plaintiff was the procuring cause of the sale was for the jury to determine."
The judgment of the trial court should be affirmed. It is so ordered.
McDOWELL, J., concurs.
BLAIR, J., not sitting.