* Headnote 1. Contracts, 13 C.J., Section 908; 2. Brokers, 9 C.J., Section 59; 3. Contracts, 13 C.J., Section 1020; 4. Evidence, 22 C.J., Section 1570. This is an action for a real estate broker's commission. There was a verdict and judgment in favor of plaintiff in the sum of $6000 and defendant has appealed.
Plaintiff was a telegraph operator who engaged on the side in the business of selling real estate on commission. In April or May, 1917, hearing that defendant, whom he did not know, wanted to dispose of some mining property located at California, Missouri, wrote defendant a letter concerning the sale of the property. The property was owned by defendant personally and through a corporation of which he owned the stock. Plaintiff did, not keep a copy of the letter nor defendants reply thereto but plaintiff testified: *Page 155
"I wrote to Mr. Wank and told him that I had heard that he wanted to dispose of the mining property at California. I told him that I had been successful in handling several properties, and that I knew of some people that were in the market for mining properties and to let me know on what terms he wanted to handle it on. . . . Mr. Wank wrote me a letter stating what he had there, describing the mill and the land. Of course I knew where the land was. I knew it before Mr. Wank did, and he said he was very anxious to sell it, that he wanted to go to — I believe Arizona, and that he would make a net price of nine thousand dollars and no commission."
Plaintiff attempted to sell the land to two gentlemen living at Carthage, Missouri, but was unsuccessful. In August, 1917, a Mr. Derr, at the time of the trial deceased, came to Sedalia where plaintiff was then employed and attempted to sell plaintiff and others some oil leases. Plaintiff was not interested but told Derr that he had some property that "I thought I could interest him in and that he could interest other people much easier than he could in some of his oil leases." He then took Derr to California, showed him the mining property and made Derr a price of $15,000 for the property. Derr said that there were some people in Des Moines, Iowa, that he thought he might interest in the property. Plaintiff told Derr that defendant owned the property and that he lived in St. Joseph, Missouri, and Derr suggested that he stop off at St. Joseph, Missouri, on his way to Des Moines and see the defendant. Thereupon plaintiff called defendant by long distance telephone and told him that he had taken Derr to look at the property and that Derr would see him the next day at St. Joseph on his way to Des Moines to interview some parties concerning the purchase of the property, and that he had quoted Derr a price of $15,000, "or may be $20,000." Derr told plaintiff that he thought he could get $25,000 for the property. Some time after Derr first came to Sedalia, *Page 156 defendant wrote plaintiff "wanting to know what was being done and insisting on hurrying up;" that defendant desired to go to Arizona.
Apparently the Des Moines people were not interested and Derr brought some other parties from Oklahoma and Colorado to whom plaintiff showed the property. Derr then interested Messrs. Nichols and Rosenfield in the property. Plaintiff showed Rosenfield the property in such a way as to cause Rosenfield to be interested in the same, resulting in Rosenfield's making an offer to defendant which was not accepted. After Derr saw defendant at St. Joseph he secured an option from defendant to buy the property for $15,000. This option was extended from time to time and expired three days prior to the consummation of an agreement between defendant and Derr, Nichols and Rosenfield, who purchased the property from the defendant for $15,000 and had the title of the same conveyed to a corporation which they formed. The purchase price was paid partly in cash. The corporation soon failed. Plaintiff, hearing of the sale, demanded of the defendant the difference between the price quoted him by defendant, nine thousand dollars, and the amount for which the property was sold. Defendant refused to pay the same, resulting in this suit.
Defendant's version of the transaction was that plaintiff simply wrote him asking what he would take for eighty acres of the property (the whole being one hundred and twenty acres) and that he answered, "I would take nine thousand dollars cash, no commission" for the eighty.
The petition declares upon an express contract whereby defendant employed plaintiff to sell the property on commission. The material allegations of the petition are as follows:
"Plaintiff further alleges that in the late summer or early fall of the year 1917 defendant placed said real estate in the hands of plaintiff, who was a real estate *Page 157 agent, to sell for him, and agreed that if plaintiff would find a purchaser who was ready, willing and able to buy said land at a price in excess of nine thousand dollars ($9000), that the defendant would allow and pay to plaintiff as his commission for finding such purchaser any sum over and above the said sum of nine thousand dollars ($9000), for which defendant might sell said land to such purchaser.
"Plaintiff further alleges that pursuant to said employment he spent much time and effort to find a purchaser for said land, and in the said fall of 1917 he found one C.M. Derr, to whom he showed said real estate and explained its merits, and thereupon sent said Derr to defendant.
"That said Derr did interview defendant and talked to him about said property and defendant well knew that said Derr had been procured as a prospective purchaser by plaintiff. That afterwards plaintiff exhibited said property at various times to said Derr and to others brought there by Derr, especially to one C.W. Nichols and to one Louis Rosenfield, and thereafter the said Derr, Nichols and Rosenfield formed a partnership for the purchase of said land, and unknown to this plaintiff closed the sale with defendant for the sum of fifteen thousand dollars ($15,000), such sum being six thousand dollars ($6000) over and above the price defendant agreed with plaintiff to accept for said land."
Defendant's point that the court erred in refusing to give his instruction in the nature of a demurrer to the evidence, we think is well taken. We think the evidence fails to prove the express contract pleaded. It is well settled that where an express contract is declared upon, plaintiff must recover upon the express contract pleaded or not at all. [McDonnell v. Stevinson,104 Mo. App. 191; Cole v. Armour, 154 Mo. 333, 350; Michael v. Kennedy, 166 Mo. App. 462; Stanley v. Whitlow, 181 Mo. App. 461, 464; Lewis v. Slack, 27 Mo. App. 119.] The reply of the defendant to plaintiff's inquiry regarding *Page 158 the sale of the land does not contain any agreement to pay plaintiff a commission on all over nine thousand dollars that he might get for the property. The defendant simply made "a net price of nine thousand dollars" and stipulated that he would pay no commission. In Johnson v. Whalen, 74 P. 503, (Okla.) plaintiff, a real estate agent, wrote letters to the defendant, the owner of land, asking him the lowest price that he would take for it and if he would take $3800 cash. Defendant answered, "Thirty-eight hundred will not buy it. Four thousand ($4000) cash will buy it net to me; and no less." The agent sold the land for $4300 but the defendant refused to close the transaction. Plaintiff sued for the difference between the amount quoted ($4000) and the amount for which the land was sold. The court held that the letters did not constitute a contract of employment of plaintiff to sell defendant's farm for $4000. We think the letter in the case at bar is even less favorable to plaintiff's contention than the letter in the case of Johnson v. Whalen, was to plaintiff in that case, for here defendant stipulated that he would pay no commission. We think that the agreement shown in plaintiff's evidence falls short of proving the express contract pleaded in the petition. [Johnson v. Whalen, supra; Youngman v. Miller, 241 S.W. 433; Michael v. Kennedy, supra, l.c. 465, 466.]
Plaintiff offered and the court gave his instruction No. 1, which had the jury find facts as shown by the evidence but not as pleaded in the petition, that is, that defendant wrote plaintiff that he would sell "said property for nine thousand dollars net to defendant without commission," and afterwards that defendant wrote plaintiff requesting that the sale be hurried; that plaintiff found Derr and showed him the property and informed defendant that Derr would call upon him and enter into negotiations for the purchase of the property; that Derr pursuant to his negotiations with plaintiff entered into negotiations with defendant, resulting in the sale, etc. *Page 159 The jury were further instructed that if they found such facts to be true, they would find that they constituted a contract of employment by which plaintiff became an agent of the defendant to sell the property on commission for any amount in excess of nine thousand dollars that he might sell the property. This instruction is objectionable as it submits facts to the jury which might show an implied contract to sell under such circumstances but did not submit the express contract pleaded. It may be that the facts proved and submitted in plaintiff's instruction No. 1 would give rise to an implied contract between the parties employing plaintiff to sell the land on commission but whether or not the facts shown in evidence are sufficient to show such a contract we need not say for the reason that the matter is not now briefed or presented to us for decision.
The judgment will be reversed and the cause remanded, and it is so ordered. All concur.