Opinion
No. 21512.
June 18, 1951.
APPEAL FROM THE CIRCUIT COURT, JACKSON COUNTY, THOMAS J. SEEHORN, J.
Oscar S. Brewer, Kenneth M. Myers, Kansas City, for appellant.
Reed O. Gentry, and Rogers, Field Gentry, all of Kansas City, for respondent.
This is a suit by a real estate broker, Merl L. Brewer, against defendant, Mrs. Thelma Gowin, for a commission alleged to have been earned by plaintiff in connection with the sale of certain real estate. Verdict and judgment were in favor of defendant, and plaintiff has appealed.
During the year 1947, plaintiff was engaged in the business of selling real estate, and Thomas G. Jay, a real estate salesman, was associated with plaintiff in that business and represented her in the matter here involved. On June 28, 1947, defendant called plaintiff's office by telephone and stated that the property described below was for sale. This property was owned and occupied by defendant and her husband. Jay went to the home, inspected the house, and talked with defendant. On the same day, defendant signed a listing contract the material parts of which are as follows:
"28 June, 1947. I appoint Merl L. Brewer as my exclusive agent to sell the property described as 218 East 72d Terrace, Kansas City, Missouri, for the price of $13,750.00 on terms of cash. Owner will consider offers. This authority to be for a period of 30 days and to continue until revoked by me. In the event of a sale during this period whether by you or through anyone else, I agree to pay you the regular commission as fixed by the Real Estate Board of Kansas City, Missouri. In the event the property is sold by me, I agree to pay your company one-half of the regular commission as fixed by the Real Estate Board of Kansas City, Missouri. * * * I make the above agreement with the understanding that you are to advertise this property at your own expense and make every reasonable effort to sell the same during the life of this authority. /s/ Mrs. G. W. Gowin."
The regular commission fixed by the Real Estate Board was five per cent of the sale price.
Jay was plaintiff's first witness. He testified: "Mr. Gowin was very sick * * * he was at home all the time * * * and there was no real effort made on the house until we found or had attempted to find * * * a house for Mrs. Gowin. * * * We were looking for houses between $6000 and $7000, and we weren't able to find the house that she wanted at that time. Later she decided that she would move to Slater, Missouri and buy a house in that bracket, so there was actually no heavy advertising or actual showing of the house until we canvassed as to what she could buy on the market, some place she could go into after we sold her house. * * * I held the house open on week-ends whenever Mr. Gowin's condition would allow me to do so. * * * I ran a number of ads in the paper * * *." He testified that plaintiff paid for the advertisements and identified copies of advertisements which appeared in The Kansas City Star on the following dates: Friday, August 29, 1947; Saturday, August 30, 1947; and Sunday, August 31, 1947. The advertisements described the house, gave the address, and included the following: "Open 3-6 * * * Jay. LI 3493. Brewer, Realtor."
Jay further testified that on the afternoon of Sunday, August 31, a number of people inspected the house, including David Talman; that he, Jay, showed Talman through the house and told him the sale price was $13,750.00, which was the price specified in the listing contract; that defendant was not there at the time; and that he had not seen Talman since that afternoon. Two days later, the owners agreed to sell the property to Talman and his wife for the price of $13,000. The contract of sale, dated September 2, 1947, was signed by defendant and her husband and by Talman and his wife.
Jay further testified that defendant called him by telephone on the morning of September 1, 1947, and told him that the Talmans had returned to the house Sunday night (August 31) after he left there, and that the Talmans "had expressed a real interest in the house, if they could buy it with the real estate commission off, that they didn't want to pay a real estate commission"; that when he asked defendant what Talman would pay for the property she said he had offered $13,000, "figuring that roughly" as the amount defendant would receive after paying a real estate commission of 5% on Jay's asking price of $13,750. Jay said that on the same day (September 1), he went to defendant's home and "advised her to go ahead and sell the house to them at that as it was a good price on the house, fearing to go back to Mr. Talman and quote it to him at $13,000 through myself because he would then drop his price that much more"; that he also told defendant that he "would assist her in every way possible in preparing the papers * * * and that we would be due our full commission after the sale was closed * * *, and she told me that she was going to sell and would pay us the full commission after the sale was closed"; that on two occasions during the following week he offered his services to defendant, but on each occasion she told him "she was unable to talk (to him) about the transaction because of Mr. Gowin's illness."
Jay testified on cross-examination that he would have received fifty per cent of the commission if it had been collected, and continued: "Q. So that you have an interest in this particular lawsuit against Mrs. Gowin of fifty per cent of the amount sued for if it is recovered, is that correct? A. That's right."
Defendant's testimony was in sharp conflict with that of Jay. She testified: "Q. When did you first become acquainted with Mr. Talman? A. Well, the first time was when he knocked on the door and said he understood my house was for sale. Q. What day was that? A. Well, that was close to the first of September (1947). I can't tell you the exact date * * *. It seems like it was around the first, around Labor Day sometime." She further testified that when Talman came to her home "around" September 1, she showed him through the house, and that Jay was not in her house on that day; that she never left her home because she "couldn't leave Mr. Gowin"; that Jay was not at her home on Saturday, August 30, or on Sunday, August 31; that the house was not open to the public on the days last mentioned because she "wouldn't let people in that way"; that Jay was not present at any time when Talman was there; that Talman's name was not mentioned in any conversation she had with Jay prior to the sale of the property; and that her "discussions with Mr. Talman about the purchase of the house" extended over a period of about two weeks after he first looked at it. She testified on cross-examination: "Q. Well, when did you agree to sell your home to Mr. Talman? A. Around the first of September sometime. I imagine about the first week in September." She admitted that she signed the listing contract.
Mr. Gowin died on September 23, 1947. On September 29, 1947, defendant executed a deed conveying the property to Mr. and Mrs. Talman, which deed was recorded on October 1, 1947.
Plaintiff called David Talman as a witness in rebuttal. Talman said he read an advertisement in The Kansas City Star which stated that the property in question was for sale; that thereafter, and "about the first of September, just before Labor Day," he went to defendant's home where he found Jay, the defendant, and her husband; that he had never seen the property before; that he had never met defendant or her husband prior to that day; that Jay showed him through the house and "pointed out its features." He stated on cross-examination that he never saw Jay after his first visit to the house; that all "discussions looking to the purchase of the house were carried on with Mrs. Gowin" and not with Jay; and continued: "Q. Actually your purchase of the house didn't come about for any other reason than your discussions and negotiations with Mrs. Gowin? A. That's right."
We return to defendant's testimony. That part of her testimony set forth above was to the effect that plaintiff's agent, Jay, was not the procuring cause of the sale of the property. During the course of the direct examination of defendant, her counsel sought to elicit testimony tending to establish a second defense, namely, that defendant revoked the listing contract within one week after the expiration of the thirty-day period mentioned in the contract. The contract, dated June 28, 1947, contained the following provision: "This authority to be for a period of 30 days and to continue until revoked by me." Defendant's answer specifically denied the execution of the contract as alleged in plaintiff's petition; it did not set up the defense of revocation. Counsel for plaintiff objected to the testimony referred to above on the ground "that the defense of revocation of a contract is in the nature of a confession and avoidance, and must be specially pleaded." Whereupon, counsel for defendant amended the answer with permission of the court by adding the following: "The defendant further states that at the time any sale of said property was made or concluded, if any was so made, that the contract, if any, as contained in plaintiff's petition was not in effect, and had been revoked by the defendant within one week after the expiration of the thirty-day period as contained within the contract."
Defendant then testified that "about the first week in August" 1947, she called the Merl Brewer agency by telephone and told some unidentified person who answered the call to take the property off the market; that her friend, Mrs. Juanita Haun, was with her at the time. This testimony was corroborated by Mrs. Haun who stated that she was at defendant's home when the call was made, and that the incident occurred during the first week of August, 1947. Defendant further testified that she told Jay to take the property off the market, but that she did not remember the date of that conversation.
Plaintiff, Merl Brewer, testified in rebuttal: "Q. Mrs. Brewer did Mrs. Gowin ever, at any time, in any way tell you personally to take her house off the market? A. Never." She further testified that "every conversation that comes in is taken in shorthand, typed and put on my desk every day," but she never received a report of any call from defendant.
Plaintiff also called Jay as a witness in rebuttal. The record shows that after the jury was selected and sworn, plaintiff requested and obtained an order for the separation of witnesses. As stated, Jay was plaintiff's first witness. After leaving the stand he sat at the counsel table until he was recalled in rebuttal. Upon objection of defendant's counsel, the court refused to permit Jay to give any further testimony on the ground that he had violated the order of the court in regard to witnesses remaining in the courtroom. Counsel for plaintiff then stated to the court what he expected to prove by Jay. Defendant's counsel again objected to Jay's testifying on the ground mentioned above, "and for the further reason that the offer of proof made by the plaintiff constitutes part of the case in chief and does not constitute proper rebuttal." This objection was sustained.
Plaintiff contends, first, that the trial court erred in refusing to permit Jay to testify as a witness in rebuttal. It is not deemed necessary to discuss or decide this question as the judgment must be reversed and the cause remanded for the reasons stated below, and the question is not likely to arise on another trial.
Plaintiff's second contention is that the trial court erred in giving defendant's instruction D, because "it gave the jury standards by which to determine the procuring cause of the sale which were erroneous." That instruction was as follows: "The court instructs the jury that even though you find and believe from the evidence that the purchaser Talman was found by the plaintiff during the period said contract as mentioned in evidence was in force, if you so find that it was in force, you may not find for the plaintiff in an amount more than one-half the regular commission as fixed by the Real Estate Board of Kansas City, Missouri, if you further find and believe from the evidence that the defendant actually completed the negotiations and made the sale to the purchaser Talman without any help from plaintiff in so completing the sale." Defendant says that this instruction "was given directly in accordance with the terms of the contract." According to the terms of the contract, plaintiff was entitled to the regular commission (5% of the sale price) if she was the procuring cause of the sale and such service was rendered while the contract was in force; but if defendant was the procuring cause of the sale, then plaintiff was entitled to one-half of the regular commission. See Allen v. Meredith, Mo.App., 32 S.W.2d 103, 105, and cases cited. But instruction D told the jury, in effect, that it could not find that plaintiff was the procuring cause of the sale if it found "that the defendant actually completed the negotiations and made the sale to the purchaser Talman without any help from plaintiff in so completing the sale."
In May v. Avansino, Mo.App., 185 S.W. 1178, plaintiffs sought to recover a commission for the sale of real estate. The defense was that the owner had not employed the plaintiffs and that plaintiffs had not been instrumental in procuring the purchaser. In affirming a judgment for plaintiffs, the court said, 185 S.W. loc. cit. 1180; "It does not follow that, because an agent employed to sell property does not have a part in the final negotiations or in the actual transfer, he should be deprived of his compensation * * * If the agent employed to sell finds the purchaser, he has performed the principal service of his employment; and the fact that such purchaser falls in with the owner, and they conduct the negotiations and complete the sale, even at a different price, will not deprive the agent, who has been the cause of their meeting, of his commission. Tyler v. Parr, 52 Mo. 249; Lane v. Cunningham, 171 Mo.App. 17, 153 S.W. 525; Millan v. Porter, 31 Mo.App. 563; Hovey v. Aaron, 133 Mo.App. 573, 113 S.W. 718." Other cases to the same effect are: Earls v. Alsup, 237 Mo.App. 819, 176 S.W.2d 830; Buhrmester v. Independent Plumbing Heating Supply Co., Mo.App., 151 S.W.2d 509; McMonigal v. North Kansas City Development Co., 233 Mo.App. 1040, 129 S.W.2d 75; Glassman v. Fainberg, Mo.App., 35 S.W.2d 950; Gray v. Nations, 224 Mo.App. 27, 23 S.W.2d 1080. In view of these authorities, it is clear that defendant's instruction D was erroneous.
Plaintiff also contends that the italicized portion of instruction D was in conflict with plaintiff instruction 1, which reads in part as follows: "The court instructs the jury that if you find and believe from the evidence that the defendant * * * entered into a written contract with plaintiff for the sale of defendant's property * *, and if you further find and believe from the evidence, if any, that thereafter plaintiff or her agent, Mr. Tom Jay, * * * procured one David Talman as a prospective purchaser of said property * * *, and was the efficient and procuring cause of the sale of said property to said Talman, if so, and if you further find and believe from the evidence, if any, that defendant has paid plaintiff no real estate commission on account of said sale, if so, then your verdict must be for the plaintiff and against the defendant even though the actual sale was made by defendant and neither plaintiff nor her agent, Mr. Jay, were present at the time the sale was made. * * *" Plaintiff's instruction 2 told the jury that "if you find for the plaintiff under instruction No. 1 * * * you will award her such sum as commission as will equal five (5%) percent of the purchase price of the property" plus interest. The italicized portion of instruction 1 was correct under the decisions last cited. It is obvious that the erroneous part of defendant's instruction D conflicted with the italicized portion of plaintiff's instruction 1.
But defendant insists that the giving of instruction D was not prejudicial error because the instruction was "offered by defendant as a limiting instruction on damages" and the jury returned a verdict for defendant. In this connection defendant cites the cases of Wolfson v. Baltimore Bank of Kansas City, Mo.App., 157 S.W.2d 560; State ex rel. State Highway Commission v. Southern Securities Co., Mo.App., 60 S.W.2d 632; and Eckel v. Gruebel, Mo.App., 226 S.W. 983, which apply the familiar rule that error in an instruction is not prejudicial where the verdict shows the jury disregarded the erroneous part of the instruction; and the cases of Harrington v. National Outdoor Advertising Co., 355 Mo. 524, 196 S.W.2d 786; Mendenhall v. Neyer, 347 Mo. 881, 149 S.W.2d 366; Hofstatter v. Johnson, Mo.App., 208 S.W.2d 924, which hold that an erroneous instruction on damages is harmless where the verdict is for the defendant on the issue of liability. These cases were correctly decided but they are not controlling here. In each of the cases cited it was evident that the jury had not been misled by the erroneous instruction, for the verdict showed that the jury made its finding under other instructions which were correct. In the present case defendant's instruction D purported to be a "limiting instruction on damages" and the jury found for defendant; but it does not necessarily follow that the instruction was harmless. The rules invoked by defendant should not be applied mechanically without regard to the facts of the particular case. In determining whether the instruction in question was prejudicial, it must be read and considered in connection with other instructions given by the court. Instruction D dealt not only with the measure of damages, but also with the question whether plaintiff or defendant was the procuring cause of the sale. As stated, the erroneous part of instruction D conflicted with the italicized portion of plaintiff's instruction 1, and the latter was correct. Furthermore, the erroneous part of instruction D emphasized immaterial facts relating to the consummation of the sale. In this respect the instruction is subject to substantially the same criticism as defendant's instruction E, which is discussed below. We believe instruction D was confusing and misleading when considered in connection with the other instructions.
Plaintiff also assigns error in the giving of defendant's instruction E, which was as follows: "The court instructs the jury that if you find and believe from the evidence that the defendant notified the plaintiff during the first week of August, 1947, that the contract of agency as mentioned in evidence was revoked, if you so find, and if you further find that the revocation of said contract was before the purchaser Talman was found by defendant, if he was, and if you further find that the purchase of property as mentioned in evidence was completed on the 29th day of September, 1947, if you so find, then in such circumstances, if you so find them, plaintiff is not entitled to recover and your verdict must be for the defendant, regardless of who found the purchaser." The deed conveying the property to the Talmans was dated September 29, 1947. Plaintiff contends that the court erred in giving this instruction because the words which we have italicized injected a false issue into the case. While counsel for defendant concedes that the date of the transfer of the property was "completely immaterial," he contends that the giving of the instruction was not prejudicial error because such date "at the most becomes mere surplusage with the defendant taking upon herself the additional burden of requiring the jury to find this fact." It is true, of course, that the mere fact that the instruction called for the finding of an immaterial fact, in addition to the substantive facts essential to defendant's defense, affords no ground for plaintiff to complain. Harrington v. City of Sedalia, 98 Mo. 583, 12 S.W. 342; Raymond, Missouri Instructions, Vol. 1, sec. 69, p. 60, and cases cited. Ordinarily, a party may not complain of an instruction placing too great a burden on his adversary. Thompson v. Quincy O. K. C. R. Co., Mo.Sup., 18 S.W.2d 401. However, such an instruction may be so confusing and misleading as to be prejudicial. We think that was the effect of defendant's instruction E.
As stated, Jay testified that he showed Talman through the house on August 31, 1947. This was denied by defendant. She also testified that Talman first came to her house "around" September 1, 1947; that "her discussions with Talman about the purchase of the house" extended over a period of two weeks after he first looked at it; and that she completed "the sale" and executed the deed on September 29, 1947. This testimony emphasized the fact that Jay had no part in the final negotiations or in the actual transfer of the property on September 29, 1947. However, defendant admitted on cross-examination that she agreed to sell the property "around" September 1, 1947; and the undisputed evidence shows that the contract of sale was dated September 2, 1947. It will be remembered that the erroneous part of instruction D told the jury], in effect, that it could not find that plaintiff was the procuring cause of the sale if it found that defendant "completed the sale * * * without any help from plaintiff." Now defendant's instruction E required the jury to determine whether the "purchase of the property * * * was completed on the 29th day of September, 1947." In his closing argument to the jury, counsel for defendant stressed the date of the actual transfer of the property. After referring to the other parts of instruction E, he said: "The court says that * * * if you further find that the purchase of the property was completed on the 29th day of September, and I say to you that is the date of the deed referred to by the plaintiff, and no sale is completed, and so I have stated no sale is completed, until the deed was executed. * * * If you find that is true, then you find that the plaintiff is not entitled to recover in this case one dime." While defendant was entitled to have the issue of revocation submitted to the jury, the date of the transfer of the property was not material to that issue or to any other issue in the case. Yet that fact and other immaterial facts relating to the final negotiations and the actual transfer of the property were emphasized by defendant throughout the trial; and instructions D and E called for a finding of such facts. Everything considered, we are convinced that instructions D and E were confusing and misleading in that they tended to divert the minds of the jurors from the material facts and main issues in the case. We conclude that the court committed prejudicial error in giving those instructions. It would be unrealistic to hold otherwise.
The last contention is that the trial court erred in giving defendant's instruction G. Plaintiff insists that this instruction was prejudicially erroneous when considered in connection with defendant's instruction D. Since we have held that instruction D was erroneous, it would serve no useful purpose to discuss instruction G. For the reasons stated, the judgment should be reversed and the cause remanded.
SPERRY, C., concurs.
The foregoing opinion of BOUR, C., is adopted as the opinion of the court. The judgment is reversed and the cause remanded.
BROADDUS, P. J., and DEW, J., concur.
CAVE, J., not participating.