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WHEN 8. BROKERS (§ 58*) EARNED.

Where a broker, employed by defendant and a third person to procure a sale or exchange of their respective lands for a commission, induced them to enter into a valid contract for an exchange with knowledge that both were liable for commissions, and defendant was financially able to carry out his contract, but without legal excuse refused to do so, the broker could not recover from defendant for the amount of commission the third person had contracted to pay on the theory that the defendant had defeated the broker's right to recover from the third person.

[Ed. Note.-For other cases, see Brokers, Cent. Dig. § 62; Dec. Dig. § 74.*] 3. BROKERS (§ 82*)-ACTION FOR COMMISSIONS

-I'LEADINGS-ISSUES.

Where, in an action by a broker for damages for defendant's act depriving the broker of the right to a commission from a third person, the pleadings showed that the broker was the agent of defendant and the third person to sell or exchange their lands, and that he induced them to enter into a valid contract of exchange, and that defendant refused to carry out the contract so that the broker could not collect the commission from the third person, evidence of the invalidity of the contract because of the failure of the wife of defendant to join therein because the land was homestead was inadmissible.

[Ed. Note.-For other cases, see Brokers, Cent. Dig. §§ 101-103; Dec. Dig. § 82.*] 4. PLEADING (§ 8*)-CONCLUSIONS.

A pleading alleging that a contract is valid and binding is an allegation of a mere legal

conclusion.

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6. PLEADING (§ 349*) - ANSWER REPLY — JUDGMENT ON PLEADINGS.

Where, in an action by a broker for damages caused by defendant depriving the broker of a commission from a third person earned by inducing defendant and the third person to enter into a contract for the exchange of their real estate, and that defendant refused without legal excuse to perform, defendant in his answer alleged the execution of a written contract for the exchange, and that the contract was binding on defendant and the third person, that defendant was financially able to comply with the contract, and that by reason thereof plaintiff could recover the commission from the third person, and the broker replied admitting the execution of the contract and defendant's financial ability to comply therewith, but denied every other allegation in the answer, defendant was entitled to judgment on the pleadings.

[Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 1067-1069; Dec. Dig. § 349.*] 7. PLEADING (§ 174*)-ANSWER-REPLY.

Where an answer alleged the execution of a contract and set out the contract and then alleged that it was binding on both parties thereto, a reply specifically admitting the contract set out, followed by a general denial, did not deny the legal conclusion of the validity of the contract, but to do so the reply must set up the facts showing invalidity.

[Ed. Note. For other cases, see Pleading, Cent. Dig. § 342; Dec. Dig. § 174.*]

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Where a broker, employed by defendant and a third person to sell or exchange their respective lands, induced the parties to enter into a contract for the exchange of their lands, but the contract was unenforceable, the broker had not earned his commissions. [Ed. Note.-For other cases, see Brokers, Cent. Dig. § 90; Dec. Dig. § 58.* ]

Appeal from Circuit Court, Johnson County; A. A. Whitsett, Judge.

Action by Charles Bird against Joseph Rowell. From a judgment for plaintiff, defendant appeals. Reversed in part, and affirmed in part.

N. M. Bradley and J. W. Suddath & Son, all of Warrensburg, for appellant. Chas. W. Sloan and L. M. Crouch, both of Harrisonville, for respondent.

TRIMBLE, J. Plaintiff, a real estate broker, brought this suit in two counts. The first is to recover the sum of $125 agreed upon as plaintiff's commission from defendant for bringing two landowners together and bringing about an exchange of defendant's farm for a farm belonging to one Wolfe; and the second is to recover the sum of $500 damages for causing the plaintiff to be defeated from collecting that amount of Wolfe as commission due from him. Both defendant and Wolfe knew that plaintiff was acting for both in the trade and consented that he should receive a commission from each, so there is no objection on that score.

The first count, after stating that plaintiff was a real estate broker, alleged that defendant was the owner of a farm of 68 acres in Johnson county, specifically describing it; that Wolfe was the owner of 320 acres in Cass county; that plaintiff had the farms of both for sale or exchange; that by his exertions he brought defendant and Wolfe together and induced them to enter into a contract for the exchange of their respective farms upon the terms therein stated; that by said agreement of exchange defendant was to pay plaintiff $125 and Wolfe was to pay plaintiff $500; that Wolfe, was ready, able, and willing on his part to consummate the exchange, but, without fault on his part, was unable to do so because of the refusal of defendant, without legal excuse, to complete the exchange; that thereupon plaintiff demanded of defendant the $125 due from him, which was refused, and for which judgment is prayed.

In the second count the foregoing preliminary facts as to the ownership of the two farms, the agency with each of the two men, the agreement to exchange farms, the commission to be paid by each, were all alleged to be true, and plaintiff then averred that the title of Wolfe to his farm was merchantable and good; that Wolfe was ready, able, and willing to perform said agreement and comply with all terms thereof, but, by reason of the

failure and refusal of defendant to carry | mission Wolfe agreed to pay, he must show out said contract on his part, plaintiff has that Wolfe cannot be held liable therefor been unable to collect the $500 commission and that defendant's act caused such nonfrom Wolfe and has received no commission liability. Let us see whether Wolfe is exfrom him, by reason whereof plaintiff is dam-empt from such liability. To keep the matter aged in the sum of $500, for which judgment is asked.

clear, let us consider this question as if there was but one commission due plaintiff, and that from Wolfe for procuring a purchaser of Wolfe's farm. In such case, whenever plaintiff obtained a purchaser financially able to buy, which purchaser Wolfe accepts, and the purchaser enters into a valid written agreement with Wolfe to purchase on the terms named, then plaintiff has earned his commission, even though the purchaser afterwards refuses to carry out the contract. Love v. Owens, 31 Mo. App. 501; Goldsberry v. Eades, 161 'Mo. App. 8, 142 S. W. 1080; Gerhart v. Peck, 42 Mo. App. 644, loc. cit. 651; Hayden v. Grillo, 35 Mo. App. 647, loc. cit. 654; Lombard v. Sills, 170 Mo. App. 555, loc. cit. 558, 157 S. W. 93; Chipley v. Leathe, 60 Mo. App. 15, loc. cit. 20.

The answer to the first count was a general denial. The answer to the second count was, first, a general denial, and then it was alleged that Wolfe and defendant entered into a contract in writing for the exchange of their respective farms, duly signed and acknowledged by both, and the answer set out the contract in full showing specific description of both farms and the terms of the trade. The answer to said second count further alleged that said written contract was legal and binding on both Wolfe and defendant; that defendant was at that time financially able to comply with said contract; that it was executed and delivered by both parties and also executed for the benefit of plaintiff; that by reason of said facts plaintiff was [2] So far as the pleadings are concerned, entitled to recover the $500 of Wolfe because they show that this was done. They show he (plaintiff) had performed the services he that a written contract between Wolfe and agreed to perform, and for that reason de- defendant, signed by both of them and valid fendant is not liable, hence he prayed to be on its face, was executed and delivered, and discharged with his costs. With this answer that defendant was financially able to carry defendant filed a written offer to allow judg-it out but refused, without legal excuse, to ment to be entered against him on the first do so. Consequently Wolfe is shown by the count for $125, which offer had been duly served upon plaintiff's attorney. To the answer plaintiff filed a reply admitting that defendant and Wolfe made and executed the written contract set out in the answer, and also admitting that defendant was at that time financially able to comply with said contract, and denied every other allegation in the answer.

pleadings to be liable to plaintiff for the $500 he agreed to pay him. Hence defendant has not caused plaintiff to lose $500, and the motion for judgment on the pleadings should have been sustained. If this had been done, judgment would have been rendered for plaintiff for $125 on the first count, agreeable to defendant's offer, and for defendant on the second count.

When the reply was filed containing these [3] But plaintiff contends that he offered admissions that the contract plaintiff had se- in evidence the record in a suit by Wolfe cured for Wolfe was a written contract exe-against defendant, for specific performance cuted by both of them, and that defendant was of the contract in issue, wherein defendant financially able to comply therewith (in which case Wolfe could hold defendant liable in damages for failure to perform), defendant filed a motion for judgment on the pleadings. This was overruled, and exceptions were saved. The trial was had, and the evidence showed, without contradiction, the facts to be as shown, in the pleadings.

filed an answer saying the farm he contracted to sell was his homestead, that his wife did not sign said contract and refused to sign a deed conveying said homestead, and also showing the judgment of the court therein dismissing the case. Plaintiff contends, therefore, that the written contract between Wolfe and defendant was void and unenAt the close of the evidence, defendant de- forceable, and defendant could not be made murred to the evidence as to the second count. to respond in damages to Wolfe for refusing This was overruled. Thereupon plaintiff to perform, and hence Wolfe is not liable to prayed the court to give the jury peremptory plaintiff for the $500, all because of the failinstructions to find for plaintiff on each of ure of defendant to perform. But the admis the counts in the petition, which the court sion of the record in the other case was obgave. The jury, in obedience to said instruc-jected to by defendant as not proving any tions, returned a verdict for $125 on the first count and for $500 on the second count, and judgment was rendered in accordance therewith. Defendant appeals, claiming that he is only liable for the $125, judgment for which he offered to allow entered against him.

[1] Under the facts of this case, before

issue made by the pleadings and as incompetent, irrelevant, and immaterial for any purpose in the case. The fact that defendant's farm was his homestead and that the wife refused to convey it were not pleaded by plaintiff, nor was any fact pleaded showing the contract between Wolfe and defendant to be invalid. On the contrary, the pleadings

valid and that defendant refused to perform duce a purchaser who was able to purchase, "without legal excuse." Facts not pleaded since he could not convey. If the contract are not admissible unless the pleadings are is absolutely and wholly void, then no conamended so as to cover them, and, if errone-tract whatever was entered into, and plaintiff ously admitted, will not sustain a recovery. has not performed his service to Wolfe enIrwin v. Chiles, 28 Mo. 576; Black v. Early, titling him to a commission from Wolfe. He 208 Mo. 281, loc. cit. 313, 106 S. W. 1014; Roden v. Helm, 192 Mo. 71, loc. cit. 94, 90 S. W. 798; Spindle v. Hyde, 247 Mo. 32, loc. cit. 48, 152 S. W. 19; Ross v. Ross, 81 Mo. 84; Schneider v. Patton, 175 Mo. 684, loc. cit. 723, 75 S. W. 155.

[4-7] But plaintiff says that evidence offered and objected to was within the pleadings, since the reply denied the validity of the contract. The answer, as stated before, pleads and sets out the written contract valid on its face, and then alleges that defendant is financially able to comply therewith. The reply admits the contract as set out and that defendant is financially able, and then closes with a general denial without pleading any fact showing the contract's invalidity. It is true the answer alleged the contract was valid and binding, but that allegation was a mere legal conclusion. Manker v. Faulhaber, 94 Mo. 430, loc. cit. 437, 6 S. W. 372. If the answer contains a statement of new matter, and the plaintiff fail to reply, the defendant shall have such judgment as he is entitled thereto upon such statement. Section 1810, R. S. Mo. 1909; Moore v. Sauborin, 42 Mo. 490; Ennis v. Hogan, 47 Mo. 513. When the written contract was pleaded and set out in full in the answer, the facts were stated from which the legal conclusion follows. Hoester v. Sammelmann, 101 Mo. 619, loc. cit. 624, 14 S. W. 728. The general denial in the reply, after specifically and expressly admitting the contract set out, did not deny the legal conclusion stated in the answer that the contract was binding. Bliss on Code Pleading (3d Ed.) §§ 213 and 334. To do that the reply should have set up facts showing its invalidity. The reply having expressly admitted the new matter set up in the answer, the motion for judgment on the pleadings should have been sustained.

is entitled to the commission of $125 from defendant for the services he rendered him, because, without regard to whether or not the contract was void as to Rowell, Wolfe, the purchaser produced to defendant, was willing and able to perform, so that plaintiff has rendered his services to defendant, for which the latter was to pay $125. But the situation is different with reference to the services rendered Wolfe. Plaintiff (if the contract is wholly void) did not obtain a purchaser for Wolfe, since no contract was secured nor purchaser able to purchase. He obtained the signature of a man to a written contract agreeing to convey his land to Wolfe, but he was no more able to convey than if he did not own the land, and, if the contract is, as plaintiff claims, wholly void as to that man, then no purchaser was produced to Wolfe, and no commission from him was due for the reason that plaintiff has not performed his agreement to Wolfe. Upon what theory can plaintiff claim damages against defendant for causing plaintiff to lose his pay for services rendered Wolfe, unless defendant did some wrongful act which prevented plaintiff from recovering from Wolfe. If the contract plaintiff obtained was no contract, how was defendant's refusal to perform it a wrongful act for which he could be held liable in damages?

If, as plaintiff claims, the contract he did sign was wholly void, not binding upon him in any way, then as to Wolfe, and as to plaintiff's services to Wolfe, it is the same as if plaintiff had never succeeded in getting defendant to sign the written instrument. In that case defendant could not be made to respond in damages for loss of the Wolfe commission, merely because plaintiff had expended time and labor in trying to secure a purchaser for Wolfe and, after try[8] Aside from the foregoing, there is a ing, had failed. Defendant did not employ view that perhaps supports the contention plaintiff to procure a purchaser for Wolfe. that defendant is not liable even if the rec-The case is not like that of Bird v. Blackwell, ord in the specific performance case had 135 Mo. App. 23, 115 S. W. 487, for there the been admissible under the pleadings. It is services the broker performed were services held in Curry v. Whitmore, 110 Mo. App. 204, rendered the defendant. Blackwell in that loc. cit. 208, 84 S. W. 1131, and in Young v. case employed Bird to obtain an exchange of Ruhwedel, 119 Mo. App. 231, loc. cit. 241, 96 lands with Ashbrook, and Bird undertook S. W. 228, that, even if the real estate em- that service for Blackwell, but in the conbraced in a written contract, regular on its tract that was made it was agreed as a part face, is found to be the vendor's homestead, thereof that Blackwell's commission should the contract does not become so void as to be paid by Ashbrook. In other words, Blackprevent the vendor from being liable in dam- well employed Bird to obtain an exchange of ages for failure to perform. Now if, accord- lands for him. Bird procured a man who ing to plaintiff's contention, the contract of was ready, willing, and able to exchange, but defendant was so absolutely void for all pur-Blackwell refused. Blackwell was therefore poses that it will not support an action for liable for the services rendered him by plaindamages by Wolfe, then plaintiff did not perform any services for Wolfe entitling him

tiff. Ashbrook, however, had agreed with Blackwell to pay this for Blackwell, but of

was consummated. So that Ashbrook could not be made to pay the commission due from Blackwell because of Blackwell's refusal to consummate. Hence, under the circumstances, owing to the agreement that Ashbrook was to pay Blackwell's debt instead of Blackwell, Bird had to sue Blackwell for damages instead of suing him for the commission. If it had not been for that element in the contract whereby Blackwell's debt was to be paid by Ashbrook, Bird could have sued and recovered the commission of Blackwell, just as plaintiff in this case is entitled to recover the $125 of defendant herein. In the Bird Case, supra, Judge Ellison says:

"But for the contract that plaintiff was to get his commission from Ashbrook there would be no doubt that plaintiff could have recovered such commission from defendant, for he did all that he was required to do in the performance of the agreement on his part."

The damages sued for in Bird v. Blackwell was not for loss of commissions due from Ashbrook for services rendered to him. The only commission lost was a commission earned by services to Blackwell and which he would owe, except for the agreement on the part of Ashbrook to pay it and of Bird to look to him for it. It is true, in the beginning of the opinion, it is said "plaintiff lost his commission which was to be paid by the third party." The opinion, however, shows clearly that this was not the third party's commission, but Blackwell's commission which the third party was to pay because he assumed and agreed to pay it as a part of

the contract.

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TRACY v. BERRIDGE. (No. 11096.) (Kansas City Court of Appeals. Missouri. May 18, 1914.) 1. FRAUDS, STATUTE OF (§ 116*)—CONTRACTS FOR EXCHANGE OF REALTY FOR PERSONALTY -EXECUTION-SUFFICIENCY.

real estate and by an authorized agent of the owner of the stock acting under a parol contract of agency, is valid.

[Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. §§ 251-260; Dec. Dig. § 116.*]

2. FRAUDS, STATUTE OF (§ 116*)—UNAUTHORIZED SALE OF LAND-RATIFICATION-NECESSITY OF WRITING.

Under the statute of frauds, a ratification of an unauthorized contract for the sale of land must be in writing signed by the owner.

[Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. §§ 251-260; Dec. Dig. § 116.*]

3. FRAUDS, STATUTE OF (§ 116*) — SALE OF PERSONAL PROPERTY-RATIFICATION.

The rule that a ratification of an unauthorized sale of land must be in writing, signed by the owner, does not apply to a seller of personalty, and his ratification may be shown by parol.

[Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. §§ 251-260; Dec. Dig. § 116.*]

4. FRAUDS, STATUTE OF (§ 110*)-CONTRACTS FOR EXCHANGE OF REAL ESTATE-DESCRIPTION-SUFFICIENCY.

A contract for the exchange of land for a stock of merchandise, which describes plaintiff's farm as "80 acres of land 14 miles N. of Merwin, Bates county, Mo.," sufficiently describes the land within the statute of frauds.

[Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. §§ 225-236; Dec. Dig. i 110.*]

Appeal from Circuit Court, Vernon County; B. G. Thurmond, Judge.

Action by L. G. Tracy against L. G. Berridge. From a judgment for plaintiff, defendant appeals. Affirmed.

Wheeler & Switzer, of Topeka, Kan., and Charles E. Gilbert, of Nevada, Mo., for appellant. Lee B. Ewing, of Jefferson City, and H. C. Clark, of Nevada, Mo., for respondent.

JOHNSON, J. Plaintiff sued to recover damages he sustained from a breach by defendant of a written contract to exchange a stock of merchandise for a farm owned by plaintiff. Defendant claims he did not sign the contract nor authorize any one to sign it for him. A trial by jury resulted in a verdict and judgment for plaintiff, and defendant appealed.

Defendant, who lived in Kansas, owned a stock of merchandise in the town of Stotesbury, Vernon county. His brother-in-law, Fred Gaylord, was in charge of the business as his agent under such general authority as to give the agent the appearance and reputation of being the owner of the business. About December 1, 1912, Gaylord, without disclosing his agency, employed a real estate agent to procure an exchange of the stock for a farm, and the agent began negotiations with brokers in Bates county with whom plaintiff. had listed a farm of 80 acres he owned in that county near the town of Merwin. Gaylord was brought into these

Under Rev. St. 1909, § 2783, requiring contracts for the sale of land to be in writing, signed by the party to be charged, and declar ing that no contract for the sale of land, made by an agent, shall be binding on the principal unless the agent is authorized in writing, and under section 2784, providing that a contract for the sale of goods shall not be valid unless in writing, signed by the party to be charged, or his agent lawfully authorized, a contract for the exchange of real estate for a stock of merchandise, which is signed by the owner of the negotiations, inspected the farm, and signi

fied his willingness to enter into a contract for an exchange. Plaintiff, who lived in Platte county, was notified and went to Stotesbury, where he and Gaylord entered into a written contract for the exchange of the equity in the farm owned by plaintiff for merchandise of the value of $3,800. The contract described the farm as "80 acres of land 14 miles N. of Merwin, Bates county, Mo.." and required plaintiff to execute and deliver to defendant "a general warranty deed thereto, properly executed and free and clear of all liens and incumbrances," except a mortgage of $1,400, which defendant assumed. The contract was signed by plaintiff, and Gaylord affixed the name of defendant as the other signatory party. This was the first intimation plaintiff or any other person connected with the transaction had that Gaylord was acting as the agent of defendant and not for himself. The contract was signed December 6, 1912, and it was agreed that plaintiff and defendant should meet at Stotesbury four days later to complete the exchange. They met at the appointed time, and there is abundant evidence introduced by plaintiff to the effect that defendant, with full knowledge that Gaylord had signed his name to the contract and with knowledge of the contents thereof, ratified the sale and agreed to perform the contract. But a creditor of defendant had just caused a writ of attachment to be levied on the stock, and, when two or three days later defendant procured the release of the stock from the attachment, he had changed his mind about going on with the trade and immediately packed up the goods and shipped them into Kansas.

Defendant and Gaylord testified that the latter had no authority to sell or exchange the goods; that the extent of this authority was to find a person who would trade land for the stock on terms acceptable to defendant; and that, as soon as defendant was informed of what had been done, he repudiated the acts of his agent and did nothing in ratification of them. The evidence, as a whole, presents a substantial controversy over the issues of the authority of Gaylord to enter into the contract on behalf of defendant and of the issue of the subsequent ratification of the contract. These issues were submitted to the jury in appropriate instructions, and, being decided in favor of plaintiff, we must assume that defendant had invested Gaylord with oral authority to trade the stock off for land and that defendant ratified the trade.

[1] But it is argued that the contract was within the statute of frauds governing sales of real property which not only requires such contracts to be in writing and signed by the party to be charged therewith, but provides

"No contract for the sale of lands made by an agent shall be binding upon the principal, unless such agent is authorized in writing to make said contract." Section 2783, Rev. Stat. 1909. It may be conceded, as argued by defendant, that:

"If a part of a contract is within the statute of frauds the whole is governed by it." Wolfskill_v. Wells, 154 Mo. App. 302, 134 S. W. 51; Ins. Co. v. Bloomfield, 141 Mo. App. loc. cit. 421, 125 S. W. 1193; Beckmann v. Mepham, 97 Mo. App. 161, 70 S. W. 1094.

But we do not perceive any good reason for the view that the contract in question falls within the statute of frauds relating to sales of real property. The statute requires only that the contract be signed by the party to be charged. Plaintiff, the owner of the land, was the party to be charged with the performance of the contract for the sale of the land. Moore v. Thompson, 93 Mo. App. 336, 67 S. W. 680; Cunningham v. Williams, 43 Mo. App. 629.

The relation of defendant to the transaction was that of the vendee of the land and the vendor of the merchandise. If in signing his name to the contract Gaylord was acting within the scope of oral instructions from him, the contract is neither void nor voidable, since an agency for the sale of personal property may be created orally as well as by a writing signed by the principal. Section 2784, Rev. Stat. 1909. Before the amendment of section 2783 in 1887 an agent's authority to sell the lands of his principal was not required to be in writing (Johnson v. McGruder, 15 Mo. 365; Riley v. Minor, 29 Mo. 439; Johnson v. Fecht, 185 Mo. loc. cit. 342, 83 S. W. 1077; Beheret v. Myers, 240 Mo. loc. cit. 84, 144 S. W. 824), and that amendment applied only to sales of land and not to sales of personalty.

[2-4] The jury were entitled to infer that Gaylord was acting under instructions from defendant in signing the contract, and under such hypothesis the contract cannot be said to come within the statute of frauds. And further, to bind defendant on the ground of a subsequent ratification of an unauthorized contract made by his agent, plaintiff was not required to show a ratification in writing. A ratification of an unauthorized sale of land must be in writing signed by the owner. Johnson v. Fecht, supra; Roth v. Goerger, 118 Mo. 556, 24 S. W. 176; Hawkins v. McGroarty, 110 Mo. 546, 19 S. W. 830. But that rule does not apply to a vendor of personal property. Under the facts and circumstances disclosed by the evidence, we think the court did not err in submitting the issue of ratification to the jury. The point made by defendant against the description of the land in the contract is untenable under our decision in Wilcox v. Sonka, 137 Mo. App. 54, 119 S. W. 445.

There is no prejudicial error in the record,

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