This is an action to recover a broker's commission. The petition alleges that in May, 1916, plaintiff and defendant entered into a contract whereby it was agreed that if plaintiff would procure a purchaser for a certain lot and building thereon in Union, Missouri, known as the Zehrt property, defendant would pay plaintiff for said service the excess of the purchase price obtained over and above $3100. It is alleged that plaintiff performed all of the conditions of the contract on his part by procuring, within a reasonable time, a purchaser for the property who was ready, willing and able to pay the sum of $3500 therefor. After alleging defendant's refusal to pay plaintiff anything for his said services, judgment is prayed for $400.
The answer, after denying generally the allegations of the petition (except the averment that there was a certain building and lot located in Union known as the Zehrt property) avers that on February 11, 1914, one Zehrt died leaving a will which was duly admitted to probate in Franklin County, in which defendant was named as executor; that defendant qualified as such executor and remained in charge of said estate as such; that Zehrt, at the time of his death, was the owner in fee of the aforesaid real property, which was subject to a deed of trust securing a note for $2000 with interest; that Zehrt left surviving him only a minor daughter; and that by his will, after providing for payment of debts and funeral expenses and making certain bequests, all the residue of his estate was devised and bequeathed to this defendant in trust for the benefit of said minor daughter, with power to sell and dispose of any part thereof as he might think would be to the best interest of said child. It is alleged, in substance, that on and prior to the ____ day of May, 1916, all the property of the estate had been disposed of in accordance with the will except the real estate mentioned; and that a certain bequest of $200 *Page 574 remained unpaid, as did likewise the indebtedness of $2000 secured by deed of trust on said real property. And it is averred that on the — day of May, 1916, plaintiff, having notice of all of the aforesaid matters, was told by defendant that the latter valued said real estate at about $3100, and that shortly thereafter plaintiff informed defendant that he had found a purchaser therefor, viz., one Noelke, at the price of $3500, and demanded that defendant execute a conveyance thereof to Noelke on receipt of said sum, and pay plaintiff out of the purchase price the sum of $400 for his services; that defendant declined to comply with plaintiff's demand, and as one reason for so declining "expressed to plaintiff his doubt" as to having authority to sell the property without an order of the probate court. It is then averred that plaintiff was a real estate dealer and an attorney; that defendant was not learned in the law and not competent to determine whether he had authority to sell the property and pay to plaintiff $400 out of the purchase money; and that upon defendant's refusal to comply with plaintiff's demands, plaintiff, by assuring defendant that the latter had authority to so sell the property without an order of the probate court and to pay plaintiff said $400 for his services, and by threatening suit against defendant, did "overreach, deceive and frighten defendant, and thereby procured defendant's consent to convey the property to Noelke for $3500 and to pay plaintiff $400 out of the purchase price; that thereafter defendant consulted his counsel regarding the matter and was advised by counsel that he could not sell the property, without an order of the probate court to sell the same for the payment of debts and bequests, otherwise than subject to sale for the payment of such debts and bequests of the testator, and subject also to the lien of said deed of trust. And it is alleged that acting on this advice, defendant caused Noelke to be notified that a conveyance by defendant to him would convey merely the interest aforesaid in said property; that Noelke has never offered to pay defendant the said sum *Page 575 of $3500 or any part thereof, and has not signified his willingness to pay the same and accept from defendant a conveyance of said property "subject to the aforesaid liens."
The reply is conventional.
The evidence shows that plaintiff is an attorney at law, as well as a real estate broker, and that the defendant is the cashier of a bank at Union; that the real property in question, which had been known in the community for many years as the Zehrt property, was a part of the estate of Herman Zehrt; and that defendant was the executor in charge of the estate, and was in possession and control of this real property as trustee under the will of said Zehrt, as alleged in the answer.
As to the transaction between plaintiff and defendant which forms the basis of this action, plaintiff testified that sometime in 1915 he happened to be in the bank of which defendant was cashier, and that defendant told him that the Zehrt property was for sale and asked him if he thought he could find a buyer therefor; that defendant said he wanted $3100 for the property; that he would pay no commission, but plaintiff could have whatever he might obtain therefor over and above $3100. And the evidence in plaintiff's behalf goes to show that in reliance upon this agreement with defendant, plaintiff procured a purchaser, one Noelke, who was ready, able and willing to purchase the property and pay therefor $3500; and that plaintiff reported this to defendant, who said that it was "all right," and that he would make a deed.
When asked if anything was said between him and defendant, before Noelke agreed to buy the property, as to defendant's "right to sell it," plaintiff said: "Not a word; he just told me that he had been trying to sell it — he wanted it sold." When asked again if any such conversation took place, he said: "Nor sir, none before." He further testified that after Noelke agreed to purchase the property defendant said that he wanted to see his counsel, Judge Booth; that some time thereafter, perhaps two or three months later, plaintiff met *Page 576 defendant's counsel in the court house at Union, spoke to him in regard to the matter and went with him to the probate court and examined the Zehrt will; that defendant's counsel said that defendant "had a right to sell it;" and that thereafter he reported this to defendant who "finally agreed to make a transfer of the property." And plaintiff's testimony is that after repeated efforts he was unable to obtain a deed from plaintiff, and that in his last communication with defendant the latter said that he would not pay plaintiff $400, but would pay him something.
Further testimony of plaintiff shows that he knew that the property belonged to the Zehrt estate, and that defendant was trustee under the Zehrt will. He denied, however, that he had seen the will, or knew the contents thereof, or that he knew that there was a deed of trust upon the property. And his testimony and that of Noelke is to the effect that nothing was said between them as to the character of the deed which the latter was to receive. In this connection, however, plaintiff said: "I just naturally supposed that as trustee he (defendant) was selling it."
Noelke testified that after he had agreed to purchase the property defendant came to him and asked him to withdraw from the sale, saying: "Do as if you were going to back out and don't want it. . . . I will make it cheaper to you. You will have it $150 or $200 cheaper. . . . And I will make you the deed." The witness said that defendant came to him three or four times in regard to the matter, finally telling him: "Keep quiet and I will make you the deed." On cross-examination he testified that he knew nothing in regard to the affairs of the Zehrt estate in the probate court until he learned thereof from defendant, or the latter's counsel, after his agreement to purchase the property.
One Vitt, called as a witness for plaintiff, testified in regard to conversations which he said that he heard between plaintiff and the defendant in the bank. His testimony substantially corroborates that of plaintiff's *Page 577 as to the oral agreement between plaintiff and defendant upon which this action is based.
Defendant denied that he made an agreement with plaintiff such as shown by plaintiff's evidence. His testimony is to the effect that plaintiff came into the bank and asked him if he still had the Zehrt property for sale; that he replied in the affirmative, adding: "I guess I will have to sell it sooner or later for the debts;" that plaintiff asked him what he wanted for the property, and he told plaintiff that he thought he ought to get $3200 for it, including certain fixtures; that plaintiff then left, but returned in about a half hour saying that he sold the property and requesting plaintiff to make a deed to Noelke for a consideration of $3500, which defendant refused to do. Defendant further testified that he told plaintiff of the condition of the estate in the probate court, and that he held title to the property as trustee, and asked plaintiff if he (defendant) could make a deed to the property as trustee, and was advised by plaintiff that he could do so. His further testimony is to the effect that after consulting counsel he offered to give Noelke a deed, as trustee. He admitted that upon one occasion he told Noelke that if the latter would buy the property directly from him, and not through plaintiff, he would make the price $100 less.
The testimony of defendant's counsel is that after examining the Zehrt will he merely told plaintiff, in response to the latter's inquiry, that defendant could sell the property as trustee, under the power of sale in the will, without an order of the probate court; and that he later explained to plaintiff, and to Noelke as well, the nature of the title that would pass by such transfer. Testimony offered by defendant's counsel as to conversations between him and defendant, in plaintiff's absence, was excluded on objections of plaintiff's counsel.
It is argued that the court erred in refusing to peremptorily direct a verdict for defendant. This argument proceeds upon the theory that whatever contract *Page 578 was made between plaintiff and defendant regarding a sale of the property was made by defendant in his representative capacity, as trustee under the will; and that defendant in no way became individually liable to plaintiff.
There is no question here as to defendant's power and authority to bind the trust estate by any contract of this character. It is not contended that the contract was binding upon the estate in the hands of defendant; on the contrary the suit proceeds upon the theory that by the contract alleged to have been made by defendant with plaintiff, defendant made himself personally liable to plaintiff. It is said to be the general rule that a trustee can be held personally on contracts made by him in behalf of the trust estate in the absence of a special agreement to look only to the trust estate. [1 Perry on Trust Trustees, p. 700, sec. 437a, and authorities cited; Koken Iron Works v. Kinealy,86 Mo. App. 199.] But the fact alone that the trustee is without authority to bind the estate will not of itself render him personally liable upon executory contracts where the facts show that no such liability was intended by either party. [Michael v. Jones, 84 Mo. 578; Humphrey v. Jones, 71 Mo. 62; Western Cement Co. v. Jones, 8 Mo. App. 373; Hackman et al. v. Maguire,20 Mo. App. 286.]
In the instant case it appears that at the time of the alleged oral agreement with defendant, plaintiff had knowledge of the fact that defendant was in control of this property as trustee under the will mentioned. The earlier testimony of plaintiff is somewhat confusing as to this, but being recalled, he definitely testified, on cross-examination, that he knew that this property belonged to the Zehrt estate, and that he had heard many times that defendant was trustee under the will; but, according to his testimony, he knew nothing of the terms of the trust until after he had procured a purchaser. We do not think that the fact alone that plaintiff knew that defendant held the property as trustee is sufficient to warrant us in holding, as a matter of law, that plaintiff *Page 579 contracted with defendant in the latter's representative capacity, intending to hold defendant only in that capacity. If it be true that both parties, knowing all the facts, intended that the defendant should be liable upon this contract only in his capacity as trustee, then a mutual mistake of law as to the authority of the defendant to bind himself in such capacity, would not render defendant liable individually, in the absence of any promise or contract by him to that effect. [Michael v. Jones, supra.] But though defendant held the property as trustee, he could readily render himself personally liable upon a contract to pay a commission to a broker for effecting a sale thereof. And if it be true that defendant contracted with plaintiff without reference to the capacity in which he held the property, and with nothing to exempt himself from personal liability on the undertaking, and plaintiff intended, in good faith, to look to defendant individually for his compensation, without regard to the manner or capacity in which defendant might make conveyance of the property, then we think that defendant became personally bound on the contract. [See authorities, supra.]
It is clear that plaintiff's evidence tends to show that nothing was said by defendant, at the time of the making of the original contract, tending to relieve defendant from personal liability. Plaintiff's testimony is to the effect that defendant, without reservation or qualification, agreed that he would give plaintiff whatever plaintiff might obtain for the property over and above $3100. And plaintiff's evidence, as a whole, warrants the inference that he looked to defendant personally for the payment of a commission in case he effected a sale. Under all the facts and circumstances present, we are of the opinion that it was a question for the jury to determine whether defendant intended to contract purely in his representative capacity and plaintiff knew this and did not intend to otherwise hold defendant on the contract, or whether the facts were such as to bring the case within the rule stated above whereby liability *Page 580 may be cast upon defendant individually. [See Michael v. Jones, supra.] And if, under the facts, the contract was one binding on defendant personally, it cannot be doubted that the evidence sufficed to show performance on the part of plaintiff entitling him to a recovery herein.
We are therefore of the opinion that the trial court did not err in refusing to direct a verdict for the defendant.
Complaint is made of the ruling of the trial court in excluding the testimony of defendant's counsel respecting advice said to have been given defendant by his counsel touching the matter, in plaintiff's absence. We perceive no error in excluding this testimony.
But one instruction was given for plaintiff. The giving thereof is assigned as error, but we are unable to notice this assignment of error for the reason that no complaint was made of this instruction in appellant's motion for a new trial.
The refusal of an instruction offered by defendant (defendant's instruction No. 2) is also assigned as error. By this instruction it was sought to have the jury told, in substance, that the defendant, as trustee, had no authority to sell the property except subject to liability to sale under order of the probate court for the payment of bequests or debts, if any, and subject to the deed of trust. It was not reversible error to refuse this instruction, for the real question involved pertained to the capacity in which the defendant contracted with plaintiff, as indicated above; and that matter was dealt with in defendant's instruction No. 3, which was given.
We perceive no reversible error in the record, and it follows that the judgment should be affirmed. It is so ordered.
Reynolds, P.J. and Becker, J., concur. *Page 581