161 Mo. App. 348 | Mo. Ct. App. | 1912
This action was commenced by W. D. Wade against G-aylord Douglas for the value of his services in placing loans for Wells and Adams, mortgage brokers of Quincy, Illinois. A jury was waived and judgment was rendered for the plaintiff for $2,276.25, from which the defendant has appealed.
The petition is as follows: (Formal parts omitted.)
“Plaintiff for cause of action states that Wells and Adams, mortgage brokers, located at Quincy, Ill., are and were at all the times hereinafter mentioned, engaged in the business of loaning money on real estate security in the state of Missouri; that they conduct their business in the following manner: Their loans are generally made for a term of seven years, ; and in consideration of the payment of seven per cent interest annually. A first deed of trust is given to secure a nóte for the amount of the loan, together with coupon notes representing five per cent of the interest payable annually for the term of the loan. A second deed of trust is given to secure coupon*352 notes for the additional interest of two per cent, payable annually, and drawing eight per cent interest from maturity, but that in all eases where the borrower is willing for Wells and Adams to deduct from the amount of the loan interest at the rate of one per cent for the full term of the loan, said additional interest notes represent one per cent of the amount loaned for the term of the loanv
“Plaintiff further states that one Gaylord Douglas is and was at all the times hereinafter mentioned, the agent of Wells and Adams for the purpose of employing agents to place loans for the said Wells and Adams; that on January —, 1908, he employed plaintiff as an agent to place loans for Wells and Adams upon the following terms: That in cases where the borrower was willing for Wells and Adams to deduct from the amount loaned one per cent interest on the principal sum loaned for the term of the loan, said sum was to be paid to plaintiff immediately in consideration for his services in placing said loan, and that in all other cases where loans were made by plaintiff, coupon interest notes, payable annually, and drawing eight per cent interest from maturity, secured by a second deed of trust on good real estate security, were to be assigned to plaintiff within a reasonable time after placing said loans, and said notes were to be equivalent in value to one per cent interest on the entire amount of money placed by plaintiff for the said Wells and Adams, for the respective terms of the loans.
“Plaintiff further states that the defendant assigned Howell county, Missouri, to him as his territory, and that pursuant to said contract he moved to Howell county, Missouri, and industriously and faithfully engaged in the business of placing loans pursuant to said contract; that plaintiff placed the following loans at the times and upon the terms therein specified, for which he is entitled to cash commissions*353 in the sum of $512.75: (Here follows list of borrowers, showing amounts of loans, date, and cash commissions, all of which we omit.) That plaintiff placed the following loans at the times and upon the terms hereinafter specified, for which he is entitled to notes secured by a second deed of trust, the amount of which notes is $2,425.25: (Here follows list of borrowers, showing amounts of loans, date, and commission notes, all of which we omit.)
“Plaintiff further states that the said Wells and Adams have not paid plaintiff but have sent the said cash commissions amounting to $512/75, and the said commission notes amoimting to $2,425.25 to the defendant, Gaylord Douglas, and that defendant has appropriated said cash and notes to his own use and has not paid the plaintiff $512.75 and has not delivered to plaintiff said notes or other notes in lieu thereof, 'and that plaintiff has demanded and defendant has refused to settle with plaintiff.
“Plaintiff further states that defendant under his contract of employment was to pay him compensation as aforesaid, or Wells and Adams were to pay him as aforesaid; that he does not know whether defendant or the said Wells and Adams were to pay him, but believes that Wells and Adams were to pay him as aforesaid, and that defendant has converted and embezzled his said money and notes sent to defendant by Wells and Adams as aforesaid:
“Wherefore, in consideration of the premises, plaintiff prays judgment in the sum of $2,938, and his costs.”
The answer was a general denial and plea of payment, the defendant claiming that the plaintiff was to receive but one-half of one per cent and that plaintiff’s wife was to receive the other one-half of one per cent, and that payment had been made accordingly.
At the trial it was admitted by both parties that the only controverted question of fact was us to whether defendant was to pay plaintiff one-half of one per cent, the other one-half of one per cent to be paid to his wife, or whether the entire one per cent commission was to go to the plaintiff. The evidence adduced at the' trial on this question was sufficient to authorize the finding of the court against the defendant.
The principal contention of appellant on this appeal is that plaintiff sued on one cause of action and was permitted to recover on another. The settlement of this contention requires an examination of the plaintiff’s petition. Such petition, after stating the manner in which Wells & Adams, mortgage brokers, conducted their business in making loans und paying their agents, proceeds in this fashion: ' “Plaintiff further states that one Gaylord Douglas is and was at all the times hereinafter mentioned, the agent of Wells & Adams for the purpose of employing agents to place loans for the said Wells & Adams; that on January —, 1908, he employed plaintiff as an agent to place
Under the evidence and special finding of facts by the court the plaintiff recovered on account of. a contract with the defendant and not a contract with Wells & Adams.
The petition, as we have stated, attempted to stand on two theories by stating the facts alternatively under See. 1828, R. S. 1909. Two counts, if inconsistent, could not be pleaded in the alternative if timely objection had been made. [Behen v. St. Louis T. Co., 186 Mo. 430, 85 S. W. 346.] The law, however, under this section of the statute would allow the same cause of action to be stated in separate counts under two theories in which case plaintiff would be entitled to have both theories presented to the jury.
It is further objected by the appellant that plaintiff recovered a cash judgment where his own proof showed he was to be paid in cash and commission notes, and that consequently as to the commission in notes he was not entitled to a money judgment. It is sufficient to say in answer to this contention that if part of his services were to be paid for in notes to be delivered to him by the defendant and that he demanded such notes and the defendant refused to settle with him in notes according to the terms of the contract, the plaintiff was then entitled to recover the value of such notes, which, prima facie, would be their