171 Mo. App. 543 | Mo. Ct. App. | 1913
Action by plaintiff against the defendant, a corporation to recover $1000 claimed to be dne plaintiff by defendant for services rendered in connection with the attempted exchange of property of defendant for other property. It is averred in the petition that plaintiff, being a real estate agent, and defendant a corporation, and the latter, on and prior to the 11th of January, 1909, being the owner of a certain parcel of ground in the city of St. Lonis, on which was located four certain flats or buildings, the whole covered by certain deeds of trust aggregating $24,000, and due in about two and one-half years from the 11th of January, 1909, with interest at the rate of six per cent per annum, payable semi-annually, desired to exchange this improved real estate, which, for brevity, we hereafter refer to as “flats,” subject to these incumbrances for either farm property in this State or for vacant lots, and that for the purpose of effecting the exchange defendant had placed the matter in the hands of plaintiff and employed and directed him to procure for defendant such exchange, defendant agreeing to pay plaintiff for his services in that behalf the sum of $1000; that in pursuance of the employment and agreement, plaintiff entered upon the discharge of the duties thereby devolving on him and procured and offered to defendant sundry and various tracts and parcels of farm land in exchange or barter for the flats; that defendant failed and refused to accept any of these proposed exchanges until on or about December 5,1908, when plaintiff submitted to defendant • a written proposition from the owner thereof, one Tancred P. Eggmann, to trade a farm of 520 acres, situate in Phelps county, Missouri, subject to an incumbrance thereon of $5000 for the aforementioned flats, the latter to be taken subject to the $24,000 incumbrance mentioned; that defendant again agreed with plaintiff that in the event the exchange
The answer, beyond admitting the incorporation of'defendant, is a general denial.
The cause was tried before the court and a jury and resulted in a verdict and judgment for plaintiff for the full amount claimed. From this latter, filing its motion for a new trial and saving exception to that being overruled, defendant has duly appealed to this court.
Learned counsel for appellant make six assignments of error, which we will consider in their order.
It is assigned that the court erred in overruling the objection of appellant to the introduction of the contract for the exchange of the respective pieces of real estate. The objection made to the introduction of this contract is that it varies from the contract as pleaded. Consideration of that contract and comparison of it with the averments of the petition fail to support this assignment. It is true that the contract offered and admitted in evidence enters into details of the transaction much more fully than as set out in the petition; for instance, the contract provides specifically about delivery of possession of the respective properties, exchange of abstracts, who shall pay the cost of obtaining the abstracts, disposition of crops on the farm, etc. These are all matters of detail, however, and while important enough in the contract itself and possibly necessary and material when that contract came to be carried out, do not affect the general tenor of the contract between the parties. That
The second assignment of error is to the action of the trial court in refusing to give the instruction which was requested by appellant at the close of all the evidence, that the jury should find for defendant and against plaintiff in this case. Necessarily this involves an examination of the testimony.
The principal, in fact all the material testimony in the case was given by plaintiff in his own behalf, and by Messrs. Stewart and ITay in behalf of defendant. Messrs. Stewart and Hay were the officers of the corporation defendant who had acted for it .in the matter, it appearing that they and their wives are the sole stockholders and members of defendant,- the management of its affairs and business being in the hands of the husbands. It is said by counsel for appellant that “all the material evidence which was given by respondent in support of his claim was contradicted by the evidence of appellant, yet, inasmuch as the jury found in favor of respondent we will set forth his testimony at length as a statement of what his claims are, bub which appellant insists does not entitle respondent, who was plaintiff below, to a recovery, and which does not support the verdict and judgment in this case.’’ Those counsel have accordingly set this testimony out in full. Without repeating it in detail, we summarize it.
It appears that appellant was the owner of a certain lot or lots in the city of St. Louis,- on which it had erected four flats. Title to this property was in appellant, subject to a deed of trust having about two and one-half years to run, the debt drawing six per cent interest, there being $6000 incumbrance upon each
Onr conclusion on it is that it was sufficient to take the case to the jury and to sustain the verdict, provided there was no error in refusing an instruction asked by appellant and refused, upon which refusal the third error is assigned.
The third error assigned is to the refusal of the court to instruct the jury to the effect that if they believed from the evidence that Eggmann, the man who signed the agreement of January 11, 1909, which was introduced in evidence by plaintiff, was a married man at the time that agreement was signed, they would return a verdict for defendant.
It is argued with great earnestness by the learned counsel for appellant that the failure to procure the signature of the wife of Eggman to 'the agreement, it appearing that he was a married man, was fatal to that agreement. In support of'the contention as to the necessity of the signature of the wife to the contract, we are referred to the case of Aiple-Hemmellmann Real Estate Co. v. Spelbrink, 211 Mo. 671, 111 S. W. 480. That was an action having for its object the specific performance of a-written contract for the sale of certain real estate. We do not consider it necessary to go into an examination of that case here. In the view we take of the case at bar, it is immaterial to determine whether the absence of the signature of the wife from the agreement rendered that agreement nonenforceable.
Referring to the point now made that the absence of the signature of the wife from the contract submitted to appellant is fatal to a recovery by respondent, this is to be noted: At the time of the transaction between the parties and when the representatives of defendant threw down the whole deal, no such, reason for refusal to go on with the trade was advanced or suggested by appellant. We have set out all the rea
Unlike the Aiple-Hemmellmann case, this is not an action for a specific performance of a contract. It is an action to recover commissions claimed to be due and owing, the right to the commission based on the ground that defendant, appellant'here, after respondent had performed his work up to the point of securing a customer ready, able and willing to go on with the exchange of the property on the terms upon which the employer of respondent had authorized, that employer, without legal excuse, had withdrawn from the trade and so prevented its consummation. It was not necessary to the conduct of the trade that the customer should have entered into a written agreement to make the exchange; a verbal agreement would have been sufficient up to the point of consummation of the trans-ation: respondent had done all that was necessary when he secured a party who was ready, able and willing to go on with the trade; how that was evidenced, was, up to that point, immaterial; the customer had been secured; that the wife of that customer was not up to that point a party to the agreement, was imma
It is assigned as error that the court refused to instruct the jury, at the instance of defendant, to the effect that if it believed from the evidence in the. case that Stewart and Hay were not willing to take the farm in exchange for the flats because of the fact that there was a $5000 mortgage or deed of trust on the farm and that they so instructed Johnson in any trade he should try to effect, then their verdict should be for defendant. In connection with this assignment is the further one that as plaintiff’s instruction, which purported to cover the whole case, omitted this element of it from the instruction that it was error. We consider both of these together. '
It may be said as to this first ground as was said of the third assignment, that no such reason was given for the refusal to go on with the contract after it had been signed by Eggmann and when respondent had asked the representatives and agents of appellant to sign it. As we have seen, the refusal to sign — the breaking off of the negotiations — was placed upon ah entirely different ground.
The instruction is furthermore subject to the very same criticism that counsel for appellant level against the first instruction given at the instance of respondent, namely, purporting to cover the whole case, it leaves out of view a very material element. .Even granting that Stewart and Hay had instructed Johnson to- the effect that in any trade he should try to
We do not think that the instruction given at the instance of respondent, plaintiff below, is subject to the criticism here made about it. It is true that an instruction which purports to cover the whole case and allows a verdict for the plaintiff must not ignore the matters of defense. We are cited by the learned counsel for apellant to a number of criminal cases in support of their contention, that the court should have covered both sides of a proposition. That is true in criminal cases, as see State v. Harris, 232 Mo. 317, l. c. 321, 134 S. W. 535. But the rule is not so in civil eases. In the latter, mere non-direction is not ground for a new trial. [Morgan v. Mulhall, supra, l. c. 462, et seg.] In that case it is said (l. c. 463), “That mere nondirection is not misdirection is a familiar, settled rule of appellate procedure. Under that rule, before appellant can predicate reversible error on what a trial court does not say to the jury, he must first put the court in the wrong by asking it to say something, or else the court in trying to cover the case by instructions holds a false voice, or omits in general instructions essential elements of the ease.” When a party, in a civil action, asks the court to correct its instruction by an addition to it, that addition must be a cor
This disposes of all the material assignments.
The judgment of the circuit court is affirmed.