149 Mo. App. 210 | Mo. Ct. App. | 1910
Action for compensation for assisting in the sale of certain railroad stock. The petition alleged that on July 25, 1903, defendant employed plaintiff to assist in the sale of the capital stock of what was known as the Cane Belt Railroad in Texas, and had stated to him that if he would assist him and the sale should be> made that he would be more than liberal and generous in paying and compensating plaintiff for his services in that behalf; that plaintiff in pursuance of this employment undertook, to and, did, procure a purchaser and that as a result of his efforts a sale of the stock was made to the Santa Fe Railroad for the sum of eight hundred and fifty thousand dollars, and that his services in that respect were worth fifty thousand dollars, for which he asks judgment. The answer was a general denial.
There was a trial by jury, verdict for plaintiff for seven thousand five hundred dollars, and defendant has appealed. The errors insisted upon in this court relate to the action of the court in admitting and rejecting testimony, and in giving and refusing instructions.
It appears from the evidence that the Cane Belt Railroad Company was a Texas corporation with a capital stock of one hundred thousand dollars and had built and owned a railroad one hundred miles long between Sealy and Matagorda in Texas, with small branches. That in the building of this road the Lincoln
Defendant denied any contract of employment between himself and plaintiff, and also denied having made several statements which plaintiff had testified that he had made, and further testified that he understood that what plaintiff did was done as a matter of friendship and without expectation of compensation, but that plaintiff had said to him that Brown was a friend of his and if he could he would be pleased if defendant would pay him something that he might make a present of it to Brown. Defendant also testified that at one time plaintiff and Brown had met him in Texas, and that plaintiff had then insisted that defendant settle the question of compensation with Brown and then -said that he himself expected nothing. That defendant then in conversation with Brown had offered him seven thousand .five hundred dollars. The further testimony on behalf of defendant tended to show that the sale of
The errors complained of in relation to the admission of testimony will be noticed first. Defendant placed upon the witness stand one Mr. Moody who was asked to state what part he had taken in the sale of the Cane Belt Railroad to the Santa Fe. Upon objection of plaintiff he was not permitted to answer. This is assigned as error. The defendant did not state to the court what he expected to prove by this witness and, hence, the court was not informed whether or not the testimony, if given, would be material and defendant having failed to inform the court what he expected to prove by this witness cannot now complain that he was not permitted to answer the question asked him. [Ruschenberg v. Southern Electric Railroad Company, 161 Mo. 70, 81, 61 S. W. 626; McCormick v. City of St. Louis, 166 Mo. 315, 338, 65 S. W. 1038; Gage v. Trawick, 94 Mo. App. 307, 68 S. W. 85.]
It is next contended that error was committed in excluding correspondence between Colonel Polk, vice-president of the Gulf, Colorado and Santa Fe, and Mr. Ripley, president of the Santa Fe. The purpose of offering this testimony as contended by defendant was to show that plaintiff was not the procuring cause of the sale being made and insists that unless plaintiff can show that he was the procuring cause of the sale being made that he cannot recover. This proposition is correct where the ordinary broker is employed to sell property and his compensation is conditional upon his making a sale. [Mead v. Arnold, 131 Mo. App. 214, 222, 110 S. W. 656; but this case does not stand upon that proposition.] The contract under which plaintiff seeks to recover in this case is not the ordinary broker’s contract in which the agent is required to procure a sale of the property before he is entitled to compensation, but his petition, and his proof under it, tend to show that plaintiff’s employment in this case was merely to assist defendant in
The negotiations for the sale of the stock of the Cane Belt road were conducted in person by Jonathan Lane who was president of the Cane B’elt road and when Lane was upon the witness stand he was asked by defendant whether or not the correspondence between plaintiff and defendant Eldridge had ever been communicated to him prior to the consummation of the sale. On objection this testimony was excluded. No error was committed in this respect. Plaintiff’s duty, under his alleged employment, was to help to find a purchaser for the property. Lane was a part owner and was representing- both himself and the defendant, in his efforts to sell the property, and there is no evidence that defendant, at any time, ever instructed the plaintiff to report to Lane, and in the absence of such instruction he was not required to do so, and this testimony was for that reason, immaterial.
Theodore P. Shonts was placed upon the witness stand by plaintiff and was asked this question. “Q. What, in your opinion, is a fair and reasonable price or compensation for assisting in the sale of railroads?” This question was objected to and, in this instance, we think the objection ought to have been sustained. It is clear that a party employed to assist in the sale of a railroad could ouly recover compensation for what he did, and manifestly no witness could testify what would be a fair and reasonable compensation without knowing what he had done. The same witness was also asked a hypothetical question which undertook to recite everything that plaintiff had done and also had incorporated in it the conversation plaintiff had testified to as having passed between him and defendant at the time he was employed. This question was objected to, and we
Defendant placed Mr. Lane upon the witness stand and tried to show by him what was done with the eight hundred and fifty thousand dollars which the Santa Pe had agreed to pay for the Cane Belt Railroad. The court permitted him to do this in so far as he was able to state the items and the amounts paid for each, but the witness was unable to account for the expenditure of the entire amount in that way. The contract of sale had provided that the price was to be eight hundred and fifty thousand dollars, but that out of that sum was to be paid the floating debt of the Cane Belt road, and certain extensions and improvements that it was agreed were to be made were also to be paid, out of it, and the balance to be paid over to the stockholders. The defendant was seeking, by this testimony, to show the amount that the stockholders realized out of the purchase price of the road. This testimony was only admissible for one purpose and that was to show how much the stockholders were to realize out of the sale, and the bearing it would have upon the value of plaintiff’s services, but as we have already said the jury evidently based their verdict, so far as the amount of it was concerned, upon the testimony of what defendant had himself agreed to pay, and while we think the witness should have been permitted to answer, this question, the refusal of the court to permit him to do so was harmless error in this case.
Defendant placed Tom Brown on the stand and he testified in defendant’s behalf to the effect that he heard
The evident purpose of offering this statement was to impeach Brown in so far as it did impeach him, and to show that he had changed front in his attitude toward the plaintiff since the bringing of this suit. The court in his statement to the jury and in overruling the objections of defendant who was seeking to exclude the statement entirely, clearly defined to the jury the purpose of offering this testimony and we do'not think it
It is insisted in this court that error was committed in giving instruction number one for plaintiff. This instruction told the jury that if they believed from the evidence that defendant had employed plaintiff to assist him in the sale of the stock of the Cane Belt Railroad, and that plaintiff, through his efforts, had procured a purchaser for the stock, then they should find for plaintiff. The objection to this instruction is that it allows plaintiff to recover on proof that he assisted defendant without showing that he was the procuring cause of the sale being made. As we have already said, plaintiff’s cause of action rested upon the proposition that he had been employed to assist and that he did assist, and, hence, this instruction followed the pleadings and the evidence and was not open to the objection made against it. Objection is also made to this instruction that if plaintiff relies upon the fact that he assisted defendant in the sale of the stock that he cannot recover upon proof of the fact that he himself procured the sale. We are not impressed with this argument. If it be true that plaintiff was employed only to assist in the sale and in his proof he did show that he not only assisted, but did more and actually made the sale, it certainly would not relieve defendant from his liability to pay plaintiff for his services, and he cannot now be heard to say that plaintiff had done more than he hired him to do.
Defendant now insists that the court erred in refus