Merton v. J. I. Case Threshing Machine Co.

SMITH, P. J.

This is an action which was commenced before a justice of the peace. The statement filed by plaintiff alleged that the defendant was indebted to him in the sum of $210 for services rendered to it, at his request, in effecting a sale of a 12-horse-power Case engine, for the said defendant, to' William Borst, or Borst Brothers, of Leavenworth county, Kansas. That the said defendant was to pay the said plaintiff, as commission on said sale, twenty-five per cent on the sale price of said engine if the same was sold for cash, and twenty per cent if sold on time. The plaintiff says that the said 12-horsepowei Case engine was sold to said William Borst, or Borst Brothers, on or about the 1st of July, 1901 on time, and for the sum of $1,050, and that the plaintiff is entitled to the sum of $210 as commission on said sale. That the same is due and unpaid. Wherefore, plaintiff prays for judgment for $210, etc. There was a trial in the circuit court, where the cause was removed by appeal, in which plaintiff had judgment for $205.20, and the defendant appealed here.

At the conclusion of the evidence adduced by plaintiff the defendant interposed a demurrer thereto, which was by the court denied; and the action of the court in that regard constitutes one of the grounds of error it has assigned. The plaintiff testified that he had formerly been engaged in the business of selling threshing machines as agent, and that early in 1901 while in Leavenworth county, Kansas, in other business, he heard that Borst, who lived in that county, was contemplating the purchase of a threshing machine; so thinking he might make some arrangement with him to sell him one he went to see him at his home where it was agreed for him to go to Kansas City and see if he could not get an agency for the sale of threshing machinery so as to be able to sell him an engine on satisfactory terms. Accordingly, he went to Kansas City and there had an interview with defendant’s general *633 agent, Gittins. He asked Gittins whether he had a local agent in Leavenworth connty, and on being informed that he had not he said to him (Gittins): “I would like to make an arrangement by which I can sell your machines in that county for this year (1901) as I had a customer already that I thought would buy. ’ ’ Thereupon Gittins said: “Very well, we will arrange with you.” Gittins then said: “We will pay you twenty per cent on time sales and twenty-five per cent for cash sales at list price;” and “while talking he took up a tablet and pencil and wrote down the different things that I had stated to him. ’’ He asked, “Where does the party live who you think wants to buy a rig, and what is his name? ” which, on being told, he noted down. He said to the plaintiff that he had better write to the party “and see what his opinion was now about the deal.” Thereupon the plaintiff wrote to Borst, who answered back that he had not closed any deal yet but that he had an offer of $75 better for the old engine than was offered by plaintiff. The latter thpn wrote to him that he “had a man who could afford to allow him more than any man on earth for a sócondhand engine. ” Borst did not reply to this letter.

Plaintiff further testified that at this juncture he recalled Gittins’ action in writing down the substance of what he had stated to him in their interview, already referred to, and became a little anxious, and so he wrote to Gittins that if he had sent another man to Borst and closed the deal he would hear from him again “in no uncertain terms,” etc. A letter from plaintiff to the defendant was introduced in which he refers to the previous interview with its agent, Gittins, and stated that the party desiring the new engine and having an old one was still “open for a deal” and that he proposed to come to Kansas City the following Sunday when he wanted to see the defendant’s agent to get necessary blanks, instructions, etc., so that he could close the deal with Borst. The defendant’s agent answered that he *634 did not believe that he could give him any new information pertaining to the method of making the deal he had in view, and as some of ££ onr old agents have been trying to make the sale we fear it will be impossible to make it through you,” etc. To this plaintiff wrote replying : £ £ Judging from the wording of your letter yon have sent a man there and closed the deal. . . I treated you fairly when you asked the party’s name and locality. I gave no fictitious name or false direction-supposing you would treat me honorably, as other dealers would have done under the same circumstances ’ ’ etc. Gittins responded to this by saying that he had sent no one “to find that engine customer” and that “we have had no orie in that section for a long time. . . . We have heard nothing of the deal- since you wrote and presume no agent is after it. If you can get it for us, we will be pleased to have you do so.”

The plaintiff made two trips after this to see Borst and found that one Winship, an agent of defendant at Kansas City, had, under direction of Gittins, been to see him and had sold him an engine, the list price of which was $1,200. The defendant refused to pay the plaintiff anything for his service.

It is the well-settled rule of law in this State that where an agent introduces the purchaser or discloses his name to the seller and through such introduction or disclosure negotiations are opened and the- sale of the property is effected, the agent is entitled to his commissions, though the sale is made by the owner. Tyler v. Parr, 52 Mo. 249 ; Timberman v. Craddock, 70 Mo. 638 ; Gelatt v. Ridge, 117 Mo. 560 ; Lipscomb & Russ v. Cole, 81 Mo. App. 53 . The evidence in the present case certainly had a tendency to show that the plaintiff had disclosed the name of a purchaser to the defendant and that the sale to Borst would not have been effected but for such disclosure; and to that extent, at least, the plaintiff was the procuring cause of the sale. We think the evidence was sufficient to carry the case to the jury, *635 and that the trial court did not err in denying the defendant’s demurrer.

The defendant complains of the action of the court in the giving of the plaintiff’s instructions numbered one and two; but it appears that the court at the request of the defendant gave its number two which submitted the case upon a theory which was in substance no more than the converse of that declared in those given for the plaintiff. If the plaintiff’s embodied an erroneous theory of the case, so did .that of the defendant; and the error being common, neither party could be heard to complain of it.

The defendant’s first instruction was, we think, properly refused.

The defendant’s motion for new trial assigned as grounds therefor that the “verdict was against the evidence” and “against the weight of the entire evidence.” "We have already reached the conclusion that the evidence adduced by plaintiff was sufficient to carry the case to the jury, and that being so its verdict is conclusive. And as to whether the verdict was against the weight of the evidence it is not within our province to determine, in a ease of this kind. Carr v. Ubsdell, 71 S. W. 112 .

The defendant has assigned a greater number of errors here than is authorized by its motion for a new trial. As.a general rule, the assignment of the errors committed by the court during the progress of the trial must be based on the specifications of the motion for the new trial. The former ought not to be more comprehensive than the latter, or, if so, those not so based will be passed unheeded. The defendant has suggested in its brief and argument a number of questions not properly arising on the record, and so they have not been noticed.

The judgment was clearly for the right party and will be affirmed.

All concur.