204 Mo. 133 | Mo. | 1907
This is an appeal from the judgment of the circuit court of Boone county in favor of the plaintiff for $4,850: The action was one for damages for fraud and deceit growing out of certain contracts between the defendant and W. G. Sawyer for commissions on the sale of real estate. Since the commence
At the very threshold we are confronted with a motion to dismiss the appeal on the ground of the insufficiency of the abstract filed by the appellant in the cause. Owing to the fact that this motion was not filed until three days after the cause was set down for argument in this court, and was only brought to the attention of this court on the day the cause was argued, the motion was taken with the cause and the matters therein assigned can best be disposed of in the consideration of the case.
The petition in substance alleges that in November, 1901, while the plaintiff was a resident of the State of Minnesota, he met the defendant in Pike county, Missouri, and was informed' by the defendant that he was a real estate agent and had various tracts of land and farms in the States of Missouri and Illinois for sale, and thereupon negotiations were had between plaintiff and defendant whereby defendant agreed with plaintiff that if plaintiff would furnish defendant a customer or customers for any lands the defendant had for sale in said States, defendant would divide equally with plaintiff any commissions received for such sales at the time the deals were closed. This contract was reduced to writing in January, 1902. That in pursuance of said contract, plaintiff began negotiations with various parties to make sales of the land situated in Pike county, Missouri, of which the defendant was the agent and had the selling; that at the date of said contract, the defendant represented to the plaintiff that among other tracts of land which the defendant as agent had for sale, was one containing 6,760 acres, known as the Block land or tract, situated in the county of Pike, maps of which said land and advertising matter showing its position were shown by defendant to
For another and second cause of action, plaintiff alleges the same contract for commissions, set forth in the first count made with the defendant about the 30th
For answer the defendant filed first a general denial to each count and for further and separate answer defendant admitted that on the 15th of February, 1902, he was an agent of the Block Land and Farming Company, and had said Block tract of land for sale, and that on or about the 9th of January, 1902, he contracted with the plaintiff that if plaintiff would furnish him a customer who would purchase said tract at and for eighty thousand dollars in cash, he would give plaintiff two thousand five hundred dollars in cash in full for his commission for his services. He admits that- plaintiff did introduce to defendant said Weber and Carpenter, who did on the 15th of February, 1902, enter into a contract with defendant as agent of the Block Land and Farming Company to purchase said land for eighty thousand dollars, and at the same time, requested and gave defendant an option to take a ten-thousand dollar interest in a corporation which they intended to organize, and give the defendant the exclusive sale of said land for a term of three years, which option defendant complied with and accepted in writing, and thereupon he immediately informed the plaintiff that he could not pay him the agreed sum of twenty-five hundred dollars in cash from said sale, and he would have to relinquish his claim on defendant for such sum and take a less sum, to-wit, fifteen hundred dollars, for his services and commission and one thousand dollars additional on thi sale of another piece of property on certain condition^.
Defendant further answering says that as agent for the owner, he had the Hart farm owned by Albert L. Bartlett, for sale as agent; that about the 9th of January, 1902, he did enter into a written agreement with the plaintiff that if he would furnish him a customer for said farm for twenty-five thousand dollars or more, he would give him for his services one-half of all they should receive for said farm over and above twenty-three thousand dollars, and afterwards, on the 28th of February, 1902, plaintiff and defendant changed and modified said agreement whereby the defendant, in consideration of plaintiff agreeing to take a less consideration than previously agreed upon in the sale of the Block tract of land, would give plaintiff one thousand dollars in addition to commission already agreed upon for the sale of the Hart farm; that plaintiff did furnish a purchaser for said farm, but that before buying the same, the said purchaser, R. C. Jefferson, insisted that the personal property then on the farm, appraised at fourteen hundred dollars, should be included in the sale of the farm at and for the price of twenty-five thousand dollars in cash, and that plaintiff
For reply the plaintiff first denied all the new matter contained in the answer. In a general way he then admits the receipt of thirty-three hundred dollars from the defendant as evidenced by the two receipts "Exhibit A” and “Exhibit B” given by him to defendant and alleges that he had given defendant credit in his petition for said sums and then alleged that plaintiff’s signature and execution of the said receipts was obtained and said originals were agreed to by him upon the false, fraudulent and wilfully deceitful representa-, tions, knowingly made to him by defendant, that, the amounts named therein were all the sums due plaintiff by defendant as his share of the commissions growing out of said sales and said instruments were obtained as stated in plaintiff’s petition by fraudulent representations intentionally and knowingly made by defendant and acted upon by the plaintiff, plaintiff believing and relying upon said false and fraudulent representations and that said.receipts and so-called compromise agree
In addition to the admissions made in the answer of the defendant the evidence tended to show that the defendant was a resident of Louisiana, Missouri, and the plaintiff on the 4th of December, 1901, was a traveling commercial agent. On the day last mentioned the plaintiff and the defendant met each other while riding on the Burlington railroad. The defendant had been down to Annada with a man to show him a farm, spoken of in the pleadings and the evidence as the Hart farm, with the purpose of selling it to him. The defendant attracted the attention of the plaintiff by his praises of the said Hart farm and other tracts of land which he had for sale. After some conversation in regard to the properties which defendant had for sale, the plaintiff, on an invitation of the defendant, went to the defendant’s office in Louisiana, Missouri, and the defendant then described to plaintiff the Block and the Hart tracts of land and gave him, plaintiff, plats, circulars and prices in reference to the same. While plaintiff was a traveling salesman for a Harvesting Company at a salary of eighteen hundred dollars per year, he also had made some land deals for some wealthy citizens living in Minneapolis and St. Paul, and had been requested by some of his friends there to keep his eyes open for a good land trade. The plaintiff was so favorably impressed'with the description of the said Block and Hart farms, that he told the defendant that he believed he could sell the said farms, and the defendant thereupon offered the plaintiff inducements to quit his occupation as a traveling salesman and go out as agent of the defendant in the real estate business, promising to divide equally with the plaintiff any commissions
There was evidence tending to show that the •defendant at all times represented to the purchasers of the Block land that the owners of that tract required eighty thousand dollars cash net as the price thereof, and that the defendant never disclosed to the plaintiff that he had a contract by which if he sold it for eighty thousand dollars he was to get twelve thousand five hundred dollars commission. A letter dated Louisiana, February 21,1902, from defendant to W. A. Block, is in these words:
*150 “Dear Sir: — I have your agreement this a. m., and I believe I can put the deal through, but what I want is consideration of sale, eighty thousand dollars, so that I can show it to the purchaser. Then we can have our private arrangements as to what you are to pay me, which is none of their concern. I cannot show them your letter as it is, because they would think I was getting too much out of it, and would make a big láek. So please send me an exact copy of the letter I received this a. m. with the exception of the consideration, and make that consideration eighty thousand dollars, and accompany it with another letter saying if I sell it at eighty thousand dollars net you will pay me twelve thousand five hundred dollars commission. In that shape, I can handle it; otherwise, I am handicapped to such an extent that I can do nothing.
* ‘ Yours truly, A. M. Walker. ’ ’
In accordance with this request Block wrote the following two letters to the defendant:
“St. Louis, Mo., Feby. 22, 1902.
“A. M. Walker, Esq.,
“Louisiana, Mo.
“Dear Sir: — Your favor of the 21, and 22, inst. were received and in reply I beg to state that if the sale of the B. L. & F. C. land is completed, we are willing to pay you the amount we may receive in excess of sixty-seven thousand five hundred dollars (67,500) net. It is understood that in case the sale should not be completed on account of whatsoever cause or reason, neither we, nor any of us, nor the B. L. So F. Co. shall be held liable or responsible in any manner, way or shape. This offer is good until March 1st, 1902, and void thereafter.
“Yours very truly, Wm. A. Block.”
The other letter dated as of February 20, 1902, is as follows:
*151 “Mr. A. M. Walker,
“Louisiana, Mo.
“Dear Sir: — My brothers and I agree to sell you or your assigns the B. L. & F. Co. land in Pike county, Mo., for eighty thousand dollars ($80,000) net cash money to be paid in St. Louis upon our delivering deed for the property. It is understood that if any title to any part of said property should be found to be defective in any way, you will perfect the same without cost to us. We also reserve the right to remove our’ personal property within sixty days, also1 that all con-, tracts, agreements and leases now in force shall be binding on you in our stead. Contract of sale to date from date of deed. This agreement is good until March 1, 1902, andvoid thereafter.
“Yours truly, Wm. A. Block.”
The compromise agreement alluded to in the pleadings and evidence was dated February 28,1902, and was as follows:
“Owing to a compromise agreement as to the amount of the commission to be paid W. Gr. Sawyer by A. M. Walker on account of the sale of the Block farm, whereby said commission is to be fifteen hundred dollars cash instead of twenty-five hundred dollars as previously agreed. However it is agreed if sale of the Hart farm can be made to any customer furnished by said Sawyer for twenty-five thousand dollars or more between now and March 16, 1902, or at any time when said farm can be bought at the price it is now offered at, the said Walker agrees to pay said Sawyer one thousand dollars in addition to the . commission already agreed upon for such sale, and it is further agreed that if before incorporation of a company to handle said Block farm said Walker should sell his interest in said farm for ten thousand dollars, or more; the said Walker agrees to pay to said Sawyer one thousand dollars in*152 cash at the time of such sale, or if said Walker should sell said interest within four years for twelve thousand dollars or more, the said Sawyer is to receive the sum of one thousand dollars as full consideration of said commission.” Signed, by both A. M. Walker and W. GL Sawyer.
The testimony on the part of the plaintiff also tended to show that the contract between Weber and Carpenter and the defendant for the sale of the Block land, was entered into on the 15th of February, 1902, for the price of eighty thousand dollars, and Carpenter testified that Walker always assured him that there was nothing in it for him at that price, and then it was agreed that Walker should take ten thousand dollars of the stock of the company that was to be formed, and he should have a contract to resell the land within two years and the exclusive right to sell the land. That agreement, however, was modified so that Walker should subscribe for only five thousand dollars of the stock. On the Bartlett tract of land there were letters of the defendant to Bartlett offered and read in evidence, one dated March 19,1902, in which the defendant among other things says to Bartlett, “Do not let anyone know what I am getting out of it, except the banker, and of course he will have to know. I am dividing with some other real estate agents on all over twenty-two thousand dollars, and they are under the impression that that is what it is costing me, and I want them to keep on thinking that. ’ ’
In the letter of October 9, 1902, the defendant writes as follows:
“A. L. Bartlett,
“St. Joseph, Mo.
“Dear Sir: — Tours to hand and in reply will say that Sawyer is claiming that I agreed to pay him one-half of the commission received on the sale of the Hart*153 farm and also the Block farm which is just north of Louisiana; and I claim that I agreed to pay him a specified sum. If you remember, I had you give me the checks, one of three thousand dollars and' the other of two thousand dollars and told you that the three thousand dollar check was the only one Sawyer was interested in and expected to turn it over to him, out of which he was to pay for twelve hundred dollars worth of personal property which he had included in the sale of the farm to J efferson for twenty-five thousand dollars. Sawyer thought best for me to close the matter up with you so Jefferson gave me two hundred dollars in cash for the balance of the personal property and I then gave you a check for fourteen hundred dollars and gave Sawyer my check for eighteen hundred dollars, which will leave me clear in the deal two thousand dollars. Sawyer was claiming a one thousand dollar balance due him at that time on account of the sale of the other farm. So I told him in order to wipe that out, he would have all over twenty-two thousand dollars he could sell the Hart farm for, and as he was dead sure that J efferson would take it, he agreed to that, but when Jefferson made him an offer it was as follows: ‘I will take the farm at twenty-five thousand dollars if you will put in all the personal property which is on the farm. ’ Sawyer thought it was the best he could do, so he accepted it, and I guess if Jefferson had insisted upon it Sawyer would have had to pay for it all, even if it had taken all of his three thousand dollar margin. My attorney, Mr. Ras L. Pearson, will call on you very early to-morrow a. m. and go over the whole matter with you. “Yours truly,
“A. M. Walker..”
Plaintiff further testified that at the time he made the compromise agreement with the defendant, he did not know that defendant was to receive the twelve thousand five hundred dollar commission from the
The defendant offered in evidence the judgment of the Pike County Land Company against A. M. Walker; defendant, in the United States Circuit Court for the Northern Division of the Eastern Judicial District of Missouri, which was objected to by plaintiff for the reason that the plaintiff was no party to that suit and no party to this proceeding or had anything to do with it; defendant could not take money due to plaintiff and invest it in any way by which he might cause a judgment to be entered against him in favor of any parties to those suits. Which objection was sustained.
In rebuttal the plaintiff also offered evidence tending to show that the defendant’s reputation for truth and veracity in the county in which he lived was bad and the defendant also offered evidence tending to show that his reputation in that respect was good.
The instructions will be noted in. the course of the opinion.
I. The first ground upon which defendant relies to reverse the judgment of the circuit court is that the petition does not state a .cause of action. Under this head the petition is assailed, first, on the ground that it alleges that there was a settlement in full by the defendant of the contract made by him with the plaintiff. But we think it is clear that this objection to the petition is without merit. While the plaintiff pleads that
n. It is next insisted that the petition is bad because there was no contract set out or pleaded in either count of plaintiff’s petition. As to this point it is only necessary to say that this is an action for fraud and deceit. As was said in Corder v. O’Neill, 176 Mo. l. c. 437, “This is not an action to enforce the verbal contract referred to in the petition, nor is it an action for the breach of it.” But is an action for fraud and deceit. The petition sufficiently avers the agreement between the plaintiff and the defendant by which the defendant agreed with plaintiff that if plaintiff would furnish defendant a customer or customers for any lands defendant had for sale either in Missouri or Hlinois, defendant would divide equally with the plaintiff any commissions he received for such sales at the
As to the further objection, that the petition does not plead an acceptance by plaintiff of the propositions made to him by defendant, the petition especially avers: “That the plaintiff accepted said proposition and began negotiations with various parties to perfect sales of the land situated in Pike county, Missouri, for which the defendant was the agent in charge of and of which defendant represented to plaintiff he had the selling,” etc. This was sufficient pleading of the acceptance of the proposition. It was not at all essential that plaintiff should set out the evidence in his petition by which he expected to prove his acceptance of the said proposition. But it is not necessary to dwell upon this point, as the evidence abundantly established not only by the admissions in the answer, but by the defendant’s own testimony it is shown that he did accept the services of the plaintiff in making the sales of the said Block and Hart tracts of land, and that the sales were made for the price which he set upon the lands, when he employed the plaintiff to assist him in the sale thereof. The plaintiff testified that he accepted the proposition and went to work under it to procure the purchasers, and this was sufficient acceptance. [Allen v. Chouteau, 102 Mo. 309, and cases cited.]
Neither do we think there is any merit in the point made that there was no averment that the plaintiff kept or performed the provisions of the contract. The petition is amply sufficient in this respect.
Again, it is insisted that there is no evidence to support the verdict on either count of the petition.
III. It is next insisted that the court erred in the admission of testimony which tended to vary and change, the terms of the alleged written contract. This is an action for fraud and deceit, and a large portion of plaintiff’s case consisted in showing the writings of the defendant by which he sought to bind the plaintiff to the acceptance of much less than his contract with the plaintiff entitled him to. Fraud vitiates even the most formal documents, and it is a settled law of this State that receipts though expressed to be in full of all demands have no contractual elements, but are opened to be explained by parol, and at most are only primafacie evidence of the facts therein stated. [Aull v. Trust Company, 149 Mo. l. c. 17; Ireland v. Spickard, 95 Mo. App. l. c. 64.]
This objection to the testimony leaves out of view altogether the fraud pleaded in the petition and the reply to which the evidence was directed. The learning
IV. It is next insisted that tbe court erred in rejecting tbe judgment of the United States Circuit Court in tbe case of tbe Pike County Land Company against tbe defendant, A. M. Walker, on tbe ground that tbe Circuit Court of tbe United States was induced to render tbe judgment that it did against tbe defendant upon tbe testimony of Weber and Carpenter, witnesses produced by tbe plaintiff in that case; that tbe
V. Defendant complains of the first five instructions given by the court for the plaintiff. The error assigned as to these instructions is not several, but seems to be' aimed at them as a whole. It is first insisted that the court submitted to the jury whether or not the acceptance pleaded was sufficient in law to close the contract. It would serve no good purpose to set forth these instructions in full, but it is sufficient to say that on this point it was simply submitted to the jury whether the plaintiff and the defendant made an agreement that if plaintiff would furnish the defendant a customer or customers for any lands the defendant had for sale either in Missouri or Illinois defendant would divide equally with the plaintiff any commissions the defendant might receive for such sales at the time the deals
VI. As to the contention that the admissions in the reply are a complete bar to plaintiff’s recovery, a reference to that pleading will show that plaintiff simply admits the signing of the Exhibits A and B, and then alleges that his signature thereto was obtained and said originals were agreed to by him by the false, fraudulent and willfully deceitful representation knowingly made to him by the defendant that the amount's named therein were all the sums due plaintiff by the defendant as his share of the commissions out of the sale of the said Block and Hart tracts of land, and that plaintiff’s receipt and the said so-called1 compromise agreement were fraudulently obtained as set forth in the petition and are void. We think the allegations of the reply were ample when taken in connection with the averments of the petition, and that the1 record furnished abundant evidence justifying the jury in reaching the verdict which they did.
We have carefully gone through the record in this case and the evidence furnished by the defendant in his abstract of the bill of exceptions, and we find that the contention of the plaintiff that he has omitted therefrom Exhibits O and Q is well taken. If Exhibit C was offered and read in evidence as copied in the additional abstract furnished by the plaintiff, it was a most important piece of testimony when we consider the issues on trial in this case.
The verdict of the jury in this case has received the approval of the circuit court which heard the cause and after a careful examination of the evidence in the case, we are of the opinion that the verdict is for the