167 Mo. App. 687 | Mo. Ct. App. | 1912
This is a suit for commission alleged to have accrued on account of services rendered in negotiating a loan of $80,000'. The finding and judgment were for the defendant, and plaintiff prosecutes the appeal.
There is no controversy in the evidence touching the fact that defendant finally authorized plaintiff to procure a loan of $80,000 for three years at five per cent interest on the property and agreed to pay bim one per cent on this amount for effecting it. Defendant resided in the state of New York, and after preliminary negotiations on his own behalf, committed the whole matter to his brother-in-law, Mr. Orville Groves, of St. Louis, for consummation.
According to the evidence of plaintiff, it was agreed between him and defendant that the loan should • be consummated in any one of three ways which was most satisfactory to the lender. It was agreed, first, that the old, or prior, deed of trust on the property could be taken up, assigned and transferred to the lender; or, second, that the defendant and his wife would execute a deed conveying the property to his brother-in-law, Orville Groves, in St. Louis and that thereupon Mr. Groves should execute a deed of trust upon the property directly to the lender; of, third, that the defendant and his wife would execute a deed of
The evidence is well-nigh conclusive that plaintiff procured a party ready, able and willing to make the loan of $80,000 for three years at five per cent interest upon a deed of trust executed directly by defendant and his wife, accompanied by the certificate of title stipulated for. Indeed, Mr. Samuel C. Davis agreed to make the loan upon these terms, and the proposition was submitted to defendant’s brother-in-law, Orville Groves, in due time to that effect. Mr. Groves offered to take the money and himself execute a deed of trust payable to Mr. Davis on the property .and exhibited-a deed from defendant and his wife conveying the property to him for that purpose. It appears Mr. Davis declined to make the loan in this manner because he was without sufficient assurance that the deed from defendant to Mr. Groves was in every -respect valid, and insisted upon a deed of trust directly from the real owner of the property, defendant and his wife, instead. Because of this, Mr. Groves, defendant’s agent', acting for him, rejected the proffered loan, declined further negotiations touching the matter and procured the money through another agent.
Throughout the instructions, the court omitted to -reckon with the fact that plaintiff’s contract contemplated that the loan might finally be consummated in either one of the three ways above mentioned: First, through taking up of the old, or prior, deed of trust .and its assignment to the lender; or, second, through the execution of a new deed of trust by Mr. Groves; or -third, through the execution of a new deed of trust by defendant and his wife directly to the lender — for it submitted the matter to the jury as though the offer of Groves, defendant’s brother-in-law', to execute a deed <©f trust in his own name was a full compliance on the ;part of defendant. This was error, for'the evidence
Among others, plaintiff requested the following instruction, as originally drafted without the words in parentheses:
“The court instructs the jury that by the writings offered in evidence, which are admitted to be true and to have passed between the parties, the defendant employed the plaintiff to negotiate for a loan of $100,000 on the property located at 515 Locust street, in the city of St. Louis, Missouri, and to pay him $1000 commission, providing the defendant had not arranged for said money prior to hearing from the plaintiff, and that thereafter said defendant directed plaintiff to consult one Orville Groves, to whom he had referred the entire matter, and that thereafter the said defendant Bruckman authorized and directed the said Groves to accept a loan of $80,000 for three years at five per cent; and the court further instructs the jury that, if you find and believe from the evidence that plaintiff Crouch did, on the 9th day of December, 1908, pursuant to said authority and the direction of said Groves (and on the terms mentioned by said Groves) find a person ready, willing and able to loan $80,000 (on the terms agreed to by Groves) for three years at five per cent on said property, 515 Locust street, and so notified defendant prior to defendant’s arranging for the same elsewhere, then your verdict will be for the plaintiff, and against the defendant for the sum of $800 (unless under other instructions given you, you find the facts to be that plaintiff was requested and employed to procure a loan for defendant upon a deed of trust to be executed by Orville Groves.)”
The court refused the instruction as requested and inserted the words which appear in parentheses
In view of the error thus pointed out, the judgment should be reversed and the cause remanded. It is so ordered.