*1 1922. TEEM, Fritschle v. FRITSCHLE, Respondent,

EDWARD W. v. NEW COMPANY, CASUALTY a AMSTERDAM Cor poration, Appellant. Opinion Appeals. March Louis Court of Filed

St. 1922. Right Compensation to Brokers: Commissions: BROKERS: Insurance 1. right Depends of Contract. The of Performance an insurance depends performance compensation stipu- on a to of the broker agency; conditions of the contract of the broker lations according strictly on him act conferred must performance principal, a of the unless strict conditions of prevented any principal without is waived contract part of the fault on the broker. Agent’s By Contract: -: -: -: Construction. 2. broker’s contract he was insurance entitled terms of an fidelity surety personal a commission on receive brought of the defendant but was into the office not overriding any commission on of such business by sub-agents or brokers. He the office was the into surety certain that a first inform bond, procure writing wanted, of the not able was Vas broker, finally another wrote the bond and the defendant to a commission on such not entitled business. he was held that Right Agent License: to Com- Without -: -: -: agent a that an Affected. The fact not mission would broker affect his act as an license writing surety of matter claim agent. exclusively and the State between the license of Louis. Court St. from the Circuit City Appeal Judge. Grimm, Hugo —Hon. J.

Reversed. appellant. T. Sluggeit, Jr.,

John employ- the contract the terms of Under (1) to recover under the not entitled ment, respondent instru- polar star construction evidence. A.—22 209 M. APPEAL REPORTS, y. Casualty Co. party executing the intention of

ments is that gathered or one document shall from remote pertinent provision apparent *2 thereof on the alone, but appears contrary gleaned from is to be all within Bogy, four corners of the the instrument. Gibson v. (2) 478; Mo. Re- Brown, 28 Williamson v. 313. 195 Mo. spondent perform did not fulfill or em- ployment compen- contract. A broker is entitled to undertaking sation he has until assumed by compensation depends per- him. The on stipulations formance of the tract of conditions of the con- agency great matters not how have been is his efforts nor how meritorious his services, if employ- accomplishing object unsuccessful in of his compensation. Corpus ment, he not entitled is 9 page Jennings App. Juris, Overholt, (3) 505. An insurance broker who is one mid- acts as dleman between the insured and who insurer; public solicits contracts from the under no any special having company order, secured an places by with the insurance selected ’ by insured or in the absence of then him, selection with the selected such broker. While Wat- ling authority was an broker, he had no represent never and- place secured from them to an order in their appellant. Corpus page (4) behalf with 509. Juris, (and Even if had an order secured admits order) he did not secure an from Heman Construction Company, respondent would not be entitled to a com- Brokerage mission. business business as known to insurance, agents outsiders who share in agent’s commission. Weidenar v. New York Life p. (5) Co., Ins. 36 Mont. 1. 592, 94, evidence in support (6) case is this sufficient the verdict. jury The court wrong submitted the ease to theory did not confine the to the contract on brought. (7) which the suit was The trial court should 1922. TERM, FritscMe appellant’s motion for a continuance and

have sustained trial of the until cause continued should application An for a of court. continuance next term address itself discretion of the of a trial judicial subject re- discretion but such court; App. appeal. Alt v. Mo. Grosclose, 409. view respondent. Paul Janis V. be

(1) record alone decision should On (2) prepared The contract was letter affirmed. appellant wording home office. The its written against strongly appellant, construed most should Belch Schott, who the words. chose Corpus Gregory, 16 Mo. 375; 13 McManus v. (3) agent pp. Where an discloses Juris, *3 principal purchaser purchaser, a finds name a performed, may de- service is and he be of his concluding principal prived by his of his commission neg- purchaser Respondent found the and was the sale. through Watling appellant otiating with him when went Tyler 52 Parr, sold the bond. v. back and behind his Cunningham, App. May v. 17; 249; Mo. Lane v. Company Ep- 185 W. Real Estate v. S.

Avansino, 1178; (4) Respondent App. was- Mo. 107. 106; 157 stein, through Watling. prevent nothing There authorized to deal getting business him from in letter to manager Appellant’s through possible any met source. respondent dealing him. and knew 63 Jacobs, 118; v. 200 Bass v. Harris S. W. Foerster, App. (5) Riggs, Bray Mo. v. 110 Mo. Respondent’s correct and should instructions are Cunning- Tyler 249; Lalie given. Parr, Mo., v. been v. May Avansino, S. W. ham, properly were instructions refused 1178. Defendant’s Young Vannata, 113 Mo. authorities; refused. Same App. 550. a had verdict of a

BIGGS, C. After judgment sum of circuit court $347.59 REPORTS, APPEAL 209 MISSOURI Casualty upon claim for a commission

based agent contract of under with the defend- Being obtaining ant. unsuccessful defend- new trial, appeals. ant

The had a branch officein the general agent city of St. Louis. The was its charge Casualty of its business. A Mr. Reach its charge general agent Fidelity Surety of its busi- By letter ness. dated March 1916, defendant wrote 18* plaintiff as follows: arrangement contemplated “Under the in St. Louis you general agent it is understood that are to be charge casualty have full of all lines. you twenty-five per

“That Reach will allow cent personal any Fidelity Surety busi- you may bring into the office. ness you any over-riding “That will not allowed com- any Surety Fidelity mission business by sub-agents into the office or brokers. you brokerage

“That will Mr. Reach a allow com- personal any may bring mission on you. develop

“That endeavor Mr. Reach will the com- pany’s primarily Fidelity Surety, but in- cidentally Casualty you, brokerage benefiting of course, appointment sub-agency connection or ' may . make.” foregoing letter the. embodies contract of em- ployment ing upon sues that contract, claim- *4 surety a commission on a bond written the de- n Company. for the fendant Heman September, plaintiff Thereafter and in the Watling, learned from Mr. who in line was a similar Surety of business and connected with the Southern Company and who was also an insurance broker that the Company Heman Construction was the market large requested Watling pro- bond. The to plans specifications cure and of the contract to cov- TERM,

Fritschle v. bring plaintiff’s of- and them bond ered submitting making up purpose and of data fice for the Watling company. to the defendant the matter This they office man- Mr. Reach, and while were did, department surety ager end of the came of as over to him. Reach the matter was turned manager to the matter thereafter submitted such days company and several home officeof authority by Mr. write to the bond. later received wire telegram plaintiff, who com- Reach showed the Watling, and it saw once the seems municated at fact by Watling Watling days, every told few that delayed writing on account some bond uncompleted. arrangements yet financial The was not authorized the Heman Con- represent Company procuring them struction no control over this business, he had direct bond, and communication direct with the He- and in fact had no Company. Watling, Mr. who was man Construction represented primarily insurance broker South- Company, Surety the business from ern solicited Company, have au- but did thority company to bond. write the from that acceptable Surety Southern thereupon Watling He-Mr. said to bondsman, place go out the busi- would like man that he Heman said other and Mr. ness with some right, you Watling do.” Mr. testi- what can “All see place him to the busi- did not authorize fied give it. Mr. further or him control of ness testified the de- Mr. Heman that he had informed company execution of the fendant had authorized the he had not told him that that Mr. Heman then give de- decided whether he would thought would that he not, fendant Company. Bonding give another it to knowledge of the 3, 1916, On November Watling, executed or Mr. *5 APPEAL REPORTS, doing twenty-five per the bond and allowed a so cent Wyatt, Superintendent to one Grant of the Company, according- Heman and who also to defend- testimony, although ant’s was insurance broker, company at the time licensed such. as defendant Company to the rendered premium, bill for the full paid by which was check of the Heman Con- deducting Company twenty-five per struction after cent put by which sum commission, was the Heman Con- Company profit struction to the credit of con- Wyatt tract in which Grant was interested.

Mr. Reach that testified when he called at the office Company early part of the Heman of November informed Mr. Heman that the matter of the placed in bond had been the hands their Wyatt, necessary Mr. it broker, and that would be arrangements Wyatt. make Mr. with appeared testimony It from Mr. Heman’s that he Watling plain- no time authorized either Mr. or the question place to write the tiff bond order company, for the bond with the defendant and that Watling plans while he specifi- furnished Mr. with regard cations and other data did papers authorize Mr. submit these the defendant that written bond was the broker of the Company, Wyatt, Heman Construction Mr. Grant Wyatt only broker that was authorized.to place the order this bond with com- pany. Wyatt represented

Mr. testified that he the Heman anas insurance broker, and that place he was authorized the negotiated that he with man- Reach; defendant’s placed ager, the order him, that pany was thereafter written the defendant com- Wyatt superintendent on Ms order. Company, appeared that he MARCH TERM, *6 Casualty Co. FritscMe v. get the but when bill commission, the

did not fact Company paid the Heman it rendered commission was twenty-five per deducting cent commission, the profit kept on the and credited contract. which it right showing plaintiff’s recovery theory of a of As foregoing the cause was facts, the submitted under request following plaintiff’s in- under the jury the at : struction you jury

“The that if find and court instructs employed the evidence that the believe surety a commission of to solicit bonds for twenty-five price premium paid per tó be cent furnished the defend- same, and ant information that the Heman Construction Com- with required pany a bond in the of hundred and sum ($122,500') twenty-two dollars for thousand five hundred Railway Murphysboro Electric and Com- the pany Southern Watling, one Arthur en- thereafter, and negotiations into with said tered furnishing a view said bond for the twenty-five ($1,225) dol- and of twelve hundred sum Amsterdam, defendant, the New and that Casu- lars Company, to said alty said bond furnished and sold Company, find that if ne- the information furnished his procuring through Watling gotiations your then verdict be in of sale of said shall plaintiff for the of favor of sum three hundred ($306.25) twenty-five sum cents, six which dollars per per you may interest at the of six cent add rate pay- plaintiff demanded on which annum from the date you he made defendant, of sum from if find ment said demand, to this date.” evidence at the filed clemurrers The defendant plaintiff’s of all the the close of case and close also demurrers should evidence, and here asserts that said in the case is the evidence sustained, have been plaintiff. support for the insufficient to a verdict APPEAL REPORTS, Fritsclile v. Corpus page thus: Juris,

In the rule is stated general to com- rule a broker is “As a udertaking pensation assumed until has App. 661); (Duncan him Turner, contrary provision in his absence great have his efforts nor how matters not" how been he is unsucessful in accom- services; his .meritorious object plishing he is not entitled compensation. Boone v. [Ballentine Mercer, to App. & depends per- compensation abn

605.] stipulations and conditions of the con- formance agency (Jennings *7 tract of 186 Mo. Overholt, 505; v. App. 606), v. Obanion, McCormick and the broker strictly according must act conferred on performance principal, him the unless strict a of the prevented by the contract conditions of is waived or is principal part fault on of the broker. example, accepts employ- a real estate broker If, compensation depend ment which makes his on purchaser procuring specified either vendor or a perform terms, he cannot if he does recov.er Slayback [Good service.” Mo. Erker, Triplett, Mo. Harwood Wetzel, App. 273.] Ruling page in 4

And Case Law, is 303, said: ‘ ‘ To entitle broker his a commissions, he must accomplish what he undertook to do in his contract of employment, nothing rule as a short of that is suf- performance part. upon ficient to constitute a his In employ- or absence hindrance fraud on the of his perform er he must all conditions of the contract as principal, every made with his or he cannot In recover. particu- case reference must be had to the terms of that employment lar in order to determine whether or not a performed. particular broker’s duties been If no duty employed terms are stated therein, of a broker usually performed to sell when one means or employer another he has his a and customer ac- TERM, FritscMe v. negotiations

ceptable another into latter procur- may doing to be the said so and his service resulting them. between ing deal page said: it is volume, same And many question has arisen as whether “In eases performance on the of the contract there has been a contemplated part, has the transaction where broker’s principal negotiated himself. The closed been or upon ques- general the decisions rule deducible peculiar nothing there to be that if tion would seem necessary that the it is the contract negotiate has or sale when he found, should broker given procured, the name introduced, of, he has or ready willing purchase purchaser able, who is a property upon principal, the terms named negotiations pur- principal into with such entered has in such sale with him; concluded a case chaser and is entitled to contract, the broker has Obviously broker .... his commissions is not upon entitled to a deal effected his em- commissions ’’ proved ployer, after his efforts have failure, own etc. grounds present In the case his cause of special upon which is clear action unam- biguous. By the terms of that contract is entitled to Fidelity personal Surety receive a commission *8 bring may into the office the business that defendant by terms of the contract he not to entitled any any over-riding of such business brought sub-agents by into the office or brokers. Mani- any plaintiff festly is not entitled to commissions on only business to the office others, such brings personally, to business as he, defendant com- pany. upon plaintiff, It inasmuch was incumbent as he show that he employed special under a to complied completed the terms thereof and with his might accomplished undertaking. through This be his through own the efforts his efforts, friend Mr. Watling acting plaintiff for him. This failed do, APPEAL REPORTS,

FritscMe v. plaintiff nor conceded that neither the procure the Heman were able to the bond wanted any Company. of them had Neither authority from Mr. write they informed it is true that were the first who while the defendant ones that such wanted, a bond was of the con- this alone was not sufficient under the terms plaintiff tract to that, entitle commission unless part, in other efforts on his the business for the resulted company. defendant argued plaintiff’s

However it is counsel that the company writing act of the defendant early part the bond prevented following plaintiff of November stipulations performing from of his contract. If any there evidence of such record fact, present theory upon plaintiff would which would recover; or, could attempt- have ing of the contract and was prevented by to do so at the timé but was the act of performance part. this defendant, would excuse on his conclusively However the facts the case show that ¡Mr. Watling acting neither the nor for him could procured this from any time. If there had been evidence show- ing writing that the act of the defendant in the bond in prevented plaintiff, through Watling November getting situation would be dif- comply ferent. Plaintiff failed to with the terms of his bring contract in that he failed into the office of the defendant the business referred and he to, failed to show as excuse therefor that the prevented getting its act had him from the business. If the is entitled- to recover under circum- presented by stances the evidence all he need do is notify the defendant when learns that some one 4s in negotiating market for a that he is with such person, thereby preclude a ing the defendant from writ-

the business other broker or otherwise, *9 TEEM, MAECH v. although paying commission, to the getting not succeed did the business time authorized write at the customer. elapsed thirty days than had

After more conferring company upon with the only person informed that the who had were Wyatt, Grant to write the business was it would have wanted through thereupon him. It bond and to deal paid wrote customary brokerage Grant according Wyatt, evidence, went but which Company. The fact of the Heman Construction benefit Wyatt to act a license as was without claim commission. not affect broker, would exclusively between State and This a matter Wyatt. Baptist App. 20 Mo. [Prince Church, Smythe Tooler Hansen, Duckworth, S. W. 963.] submitting erred in think the court

We unnecessary consider the all, hence is pre- questions propriety and other of the instructions Upon rule that the facts of case we sented. to a is therefore rec- commission,

is judgment that the reversed. ommended opinion foregoing of Biggs, PEE CUEIAM:—The judgment adopted opinion court. C., accordingly P. Allen, J., court reversed. circuit Becker concur. Danes, JJ.,