I dissent. It is my opinion that in a suit by a broker to recover a commission under a listing agreement which provides that if the owner sells the listed property himself during the period he shall be liable for the commission, it is *Page 497 not necessary that there be proof that a conveyance had been made or a legally enforceable contract entered into between the owner and the purchaser during the listing period in order to recover. It is sufficient if there is evidence from which it could reasonably be inferred that a definite agreement to purchase and sell had been entered into between the owner and the purchaser of the property listed during the life of the agency even though no written contract was made until after the agency expired. In the case of the Mercantile Trust Co. v. Lamar, 148 Mo. App. 353,128 S.W. 20, 22, in which a broker sued for his commission under a listing agreement similar to the one in the instant case, the evidence disclosed that an agent of the broker had mentioned the listed property to the man who subsequently became the purchaser. Before the listing had expired the man told the agent he had bought a home but was not at liberty to disclose what house it was until a later date. The owner admitted the sale of the property but said he purposely did not sell it until the day after the expiration of the listing period so that he would not have to pay the broker a commission. The owner introduced into evidence a written agreement to sell dated the day after the expiration of the listing and also a deed dated the same day. There was evidence that the abstract of title had been ordered a few days before the transaction was completed. The defendant there argued, as does the defendant in this case, that in the absence of proof of a legally enforceable contract or a conveyance made during the existence of the agency, the broker is not entitled to a commission. To that argument the court said:
"* * * * Neither do we accede to the proposition that if defendant had entered into a definite agreement with Reinberger by which defendant agreed to sell the property to the latter and his wife, and they agreed to buy it, this was not a sale which would entitle plaintiff to his commission because not evidenced by an instrument in writing. If such an agreement was made prior to the termination of plaintiff's agency on May 29th, and the execution of a deed was deferred merely for the purpose of evading liability to plaintiff for a commission, the contract ofsale was so far effective as to entitle plaintiff to a *Page 498 verdict * * *. The instrument by which plaintiff was appointed agent would be defeated in one of its main provisions if a complete agreement might have been reached by defendant and the Reinbergers, and yet liability to plaintiff be evaded by postponing the formal consummation of a sale until its agency expired. Such an interpretation would relieve defendant from the duty to observe good faith in keeping his agreement with plaintiff." (Italics added.)
In the instant case the court found that a "sale" of the listed property had been made before the expiration of plaintiff's agency. The evidence on whether a sale had been made during this period is contradictory. The case was tried without a jury. Being a law case this court must take the court's finding that there was a "sale" as true if there is substantial evidence either direct or inferential from which the court could reasonably so find. In my opinion there was sufficient evidence from which the court as the trier of the facts could find, as it did, that a sale was made during the listing period and the conveyance delayed until after the expiration of plaintiff's agency for the purpose of avoiding payment of a commission to him.
The prevailing opinion cites Piatt Heath Co. v. Wilmer,87 Mont. 382, 288 P. 1021; Daugherty v. Smith, Tex.Civ. App.,192 S.W. 1131; Hartig v. Schrader, 190 Ky. 511, 227 S.W. 815; and Hawks v. Moore, 27 Ga. App. 555, 109 S.E. 807, as supporting the proposition that the word "sale" as used in a contract similar to the one in the instant case "means payment of the purchase price and the conveyance of title or the execution of a binding contract of sale." In Piatt Heath v. Wilmer, supra, the question before the court was not whether a binding sale was made during the period of the listing, since it was uncontroverted that such a sale had been made, but whether the broker could recover a commission since he did not find the buyer or furnish a list of prospects. The court held the broker could recover the commission. In each of the other cases cited above the owner of the listed property under the particular provision of his listing agreement sought to avoid the payment of a commission to the broker on the ground that he had *Page 499 sold the property himself, and the courts held in those cases that if the owner is to avoid payment of commission under those conditions, that there must be proof of a conveyance or legally enforceable agreement to sell made during the listing period.
It can readily be seen that the courts are confronted with a different problem where the defense of the owner who is trying to avoid the payment of commission is that a "sale" has been made which precludes the broker from recovering under the particular contract entered into between them than is presented to us in the instant case. In the former cases the owner is in full possession of the facts and can readily prove that an enforceable contract of sale has been entered into, if such is the fact. Also, if the owner were not required to make such proof it would make it easy for him to pretend that he had made the sale himself so as to avoid the payment of a commission, whereas the broker who is suing to recover under a contract which entitles him to his commission regardless of who makes the sale during the life of the agency is not in full possession of the true facts and in many instances would never be able to prove the existence of a sale except by circumstantial evidence where the parties to the deal desire to conceal the true facts. If a broker had to prove the existence of a valid written contract of sale, he would many times fail to recover the fees to which he is justly entitled under his contract. Courts should not place an interpretation on the meaning of words in contracts which will encourage connivance and fraud in order to avoid obligations. *Page 500