"instrumental" defined as "serviceable or helpful"
How later courts described this case
- "instrumental" defined as "serviceable or helpful"
Written by the judges who cited it.
The opinion
On Motion for Rehearing.
[1] Appellees have filed .their motion for rehearing, in which they call our attention to the fact that, under the terms of the contract between plaintiffs and defendants below, plaintiffs were not required to show that they were the procuring cause of the sale of the property listed, but only that they were “instrumental in the sale.” The appellees concede that this distinction was not stressed in their original brief, and, as the trial court found that plaintiffs were the “procuring cause” of the sale, the facts that plaintiff assumed a less burden in this case than is usually imposed upon the broker escaped our attention.
[2] The contract, signed by defendants, provided that defendants would pay the agreed commission to plaintiffs “in case they are instrumental in the sale of the same.” “Instrumental” is defined as “serviceable, helpful, as instrumental in promoting an object” — Dictionary. Plaintiffs’ testimony showed that Roy S. Jordan accompanied Spradling to the garage, explained to him the business and the terms of sale, etc. Even though Spradling had known for three months that this property was for sale, and had visited the garage several times and talked to the foreman in charge, yet he had not yet traded, and had not yet seen either of the plaintiffs. We are unable to say that the evidence does not support plaintiffs’ contention that they were “instrumental” in making the sale. See Gardner v. Eldridge, 149 Mo. App. 210 , 130 S. W. 403 ; Black v. Wilson, 187 S. W. 493 (5); Piper v. Allen (Mo. App.) 219 S. W. 98 . In the last-cited case, the court said:
“This suit is not on the ordinary broker’s contract to find a purchaser or to effect a sale, but is for services rendered in assisting the defendants in making a sale of certain property. His right to recover, therefore, did not depend upon whether he was the procuring cause of the sale, but whether plaintiff did assist,” etc.
See, Kurtz v. Payne, 156 Iowa, 376 , 135 N. W. 1075, 1077 , for the distinction between a broker’s being “instrumental” in making the sale, and being the “procuring cause” of the sale.
[3] The judgment heretofore rendered will be set aside, and the judgment below will be in all things affirmed. We do not think any error was committed by the trial court in dismissing the suit against defendant W. A. Reynolds, who had not been served with citation. Culp and Reynolds were liable jointly and severally, if at all, and if Reyolds can later be found Gulp may recover against him for one-half of the amount which he may be required to pay on this judgment.