*1 rоbbery. weapons fendant had where been hidden after objection assigned reason evidence at the trial was that it was irrelevant and did not tend to connect urged with the crime. reason in his brief only here is pre-viously robbery it tended to show the commission of some months Myers manager. The Mr. the theater of which robbery way by to either the theater was no referred by witness or is in the contention. counsel. There no merit prosecuting XI. Complaint of certain remarks of the is made оb-jected, attorney argument. Defendant’s at his counsel the time prejudicial ground remarks not on the they but that were an unwarranted reflection upon defendant's counsel. The court remarked that prosecutor had not said what defendant's counsel had prosecutor understood him to mean. Counsel asked that reprimanded be jury cpnsider remark, and the instructed not Conceding which the court declined to do. the remarks coin- plained improper made, of were аnd should not have been there was episode possibly in the that could have affected the result of the trial. carefully considered the record and the nu-merous We have examined - no judgment. We find grounds urged for reversal of given a fair trial defendant was reversible error. The judgment is guilt clearly must and it established. The Kenwood, CC., concur. affirmed. Davis and CURIAM:&emdash; adopted C., PER is The foregoingopinion Cooley, judges All concur. opinion of the court. Company, Insurance Internationаl Life Edward Windsor H. (2d) 1112. 29 S.W. Appellant. Two, July 3, 1930. Division *2 English Jourdan & arid David appellant. W. Hill for *3 Thompson, W. C. Britt and Jesse W. Barrett W. and Ford A. B. respondent. for
775' DAVIS, C. This is an action recover rendered petition real estate broker. employment averred and agreement to pay procuring party ready, able trade an house for farm of defendant. jury $8,800 plaintiff’s returned favor. Defendant verdict appealed. appealed, judgment, Plaintiff also and contends that finding in view of the for plaintiff, $87,500, should have been for non obstante veredicto. finding adduced on
The evidence behalf of warrants the operating was a life company, insurance city Louis, in the it was the owner’ of lands farm engaged located in various states. Plaihtiff was at said' time'.in city of St. Louis the real estate business. From 1921 to operator. he was a real estate salesman for an Then he went as a real Carter, into business himself broker. H. estate A. *4 April 1, 1924, plain-
in was defendant. About treasurer Carter’s office with a letter of him tiff went to introduction to Cady Bluff, Mr. which Arkansas, from a of Pine he with left plaintiff answering a blind Carter. The letter was the result letter, Carter presentation newspaper Upon advertisement. Cady. informed Carter was knew Plaintiff then that he
said he Gay, business offering Cady man that had been Mr. a city this replied Carter that knew building in of St. Louis. he a Carter then said that he had building not be and wonld interested. Arkansas, states, Missouri, number scattered over different of farms Mississippi and to trade them. About Illinois, he wanted and again to days later, visited Carter and submitted plaintiff thrеe in Grand located at Palm and avenues property parcel questions, plaintiff to relates In answer city of St. Louis. He property Palm thus: “A. Grand and as to the conversation He building; he wasn’t interested it. it was a business said well, loan, very make a he knew it, was asked to he had said said, get he but, you ‘What we would like to some want and have high apartment one for what us, property; would be class that’s we are . . said, interested in.’ . kind He ‘That’s not of property high apartment property.’ wе want. We want class get said, high apartment He ‘If will some has one that class property, hunting said, property for,’ that’s the kind of we are just ‘for . . our farm lands.’ He said them that he had .. answered, (farm lands) Plaintiff over several scattered states.” I I what right, sir, “All will see can do.” office. days few Frank came plaintiff’s A. later Yrooman to May May 7th, Plaintiff Claude Vrooman about then saw E. and plaintiff 9th Yrooman took Claude to Carter’s office and intro- apartment man who had house duced him as the plaintiff to trade for his lands. Yrooman stated to farm had They property for he was to farm lands. trade say general, plaintiff but discussed the farm lands could exactly May Yrooman fur- 11th, what was said. About Claude Apart- a statement relative the Jeffersonian plaintiff nished to by Frank ment, Carter, accompanied which to Carter. was submitted inspected building. Carter Yrooman, Jeffersonian and visited A interested in Jeffersonian. told he was not days respect later, few submitted a statement building. and May On 27th Apartmеnt the Mauretania Apart- office. Carter’s The Mauretania Yrooman went to Claude farm also discussed land in the They ment was under discussion. Yrooman interested Drainage District. said Little River They very high Yrooman, Carter, plain- said it was class. Barton, appraiser present. were tiff a land and Yrooman, were trip Barton and others to make Concerning a .“They going look over were down to said: district, belonged think really which I don’t land down there Yrooman, days plaintiff saw ten later Claude International.” About . trip, muddy. About they pretty rainy said had a bad who again Yrooman, met who said that 11th, June 10th or Regis. .they going make a deal on the St. it looked like corporation (The apartment building owned anwas St. stockholder.) large later which Claude Yrooman slowly. nicely, coming on but Carter who said that saw deal.was through papers defendant had learned Later Regis Apartments. properties traded farm its. went Carter’s cross-examination, plaintiff stated that he On acquainted invitаtion, without an office 1st. Plaintiff did show Carter the St. prior- April Carter *5 not have He said that he did the St. Regis Apartments. exchange. never listed for sale or He lands farm defendant’s description. never in- farms their or, knew defendant’s never sub- money, and him defendant owed Carter formed prior rendered for services defendant mitted a bill to Carter or Carter met exchange properties, he of the filing suit. After the Carter then state to street, did not on the but de- intimation suit was the first anything. owed This anything Plaintiff said for services. claimed fendant In- Eegis Eealty & agent the St. time the was at that that he he attempting- properties; its to sell Company in vestment Eegis against St. filed suit broker. Plaintiff was the dis- Vrooman, but Company and Claude E. Eealty & Investment upon corporation re- against and Vrooman missed the action claim. did not in of his Be ceiving $1,000 settlement from them took Vrooman, but show them to farms and take lists of the of Vrooman. the lists theory by plaintiff on deposition offered The of Carter was show that Carter by defendant. tends to of an admission It His duties concerned treasurer of defendant. was the say that sales, hand but could not real estate. in the He had charge it, sales under the charter were made had because negotiations Generally sale directors. the board of subject company’s was presented sale of the lands to him. The Cady Cady Bluff, Arkansas. correspondence with J. P. of Pine with had no business transactions not defendant. Carter regard exchanging some lands Cady. to see Carter Plaintiff went Cady. through Mr. witness and told him he had some While Gay Building, Cady relative correspondence had recollected it. He plaintiff ever did recollect that mentioned at property for trade located Grand that plaintiff presented con- the, property and did not acquainted with Palm, he was but telling defendant was recollect sider He did not income-bearing these farm lands to sell Jeffersonian Plaintiff also discussed the trade Louis. inspected lands. Carter defendаnt’s farm apartments Mauretania him. Frank Vrooman went with Apartment, and Jeffersonian arranged Plaintiff Vrooman there. E. met Claude He also E. meeting Claude first occasion of inspection This was the trip. lands. next apartments for farm to a trade Vrooman as office, but brought Claude Vrooman to Carter’s afternoon as defendant discussed, lands was not exchange farm lands exchange of farm Jeffersonian. in the interested Defend- discussed. by Vrooman was .not property owned other discussed; Drainage were, Eiver District Little in the ant’s lands by Himmel- for land owned on a trade however, Vrooman Drainage Eiver Company Little burger-Harrison Lumber the. and Vrooman went there discussed, trade was District; taking defendant’s company land, Barton, the lumber look over *6 appraiser, expense. apartment be traded him at The to knowl- lumber land the was mentioned to Carter’s company edge. respect the memory,
To the of the deal with best Carter’s to exchange Regis Aрartment of farm land defendant’s for the St. August. During was first broached in of the July or the middle May summer, corporation Paisley, president elected of defendant discussing 8, 1924, there, Yrooman called Carter to his office. was of Paisley, requested bring the trade with who Carter to a list exchanged portion A of land land to them. defendant’s Regis Drainage District, Carter the St. thought. was in the Little River so plaintiff April,
All conferences with were in 1924. The willing first time that defendant to land was trade Paisley. apartments segregаted took list to' was was when Carter broker represent Carter defendant said that did as any employ in him broker find way; nor did defendánt ever as properties employ him as exchange; nor did defendant broker agent give nor land; land; to sell him a contract as to sell nor agent. representing as speak did about broker properties position for the Plaintiff’s or attitude was that subject submitted defendant. The sale presence in Carter plaintiff. was never mentioned All property did аsk for defendant. to find original propositions propositions Carter. from came payment Plaintiff never or submitted a bill for demanded Paisley iff, called Carter had never discussed rendered. Until Regis with Yrooman. Carter said the sale of the St.
brought representing propositions to and that was agents. came parties. had no Carter said other Defendant rejected. depo- which he Carter’s offers, into his office with these sition reads: “Q. you who bring somebody expecting You him to you might aс- you proposition a which make
would right might you A. do that if he made the cept, were not? We proposition. kind aof
“Q. bring you you a And did and let know he had possessed Yrooman, who was Mr. Claude man, not? A. did you, did he not. might interest kind that together you negotiated, Mr. “Q. the result And as did gentleman, Mr. make Paisley, Yrooman, with the sir.” No, him? A. agreement with inserted not, italicized, word deposition shows' that ink,. No, italicized, that the in in also shows word It written “Yes,” ink, and that the word and written inserted stricken, deposition reporter taking оut. typewriting, question, Carter show that answered
sition; errors. also president Paisley
Defendant’s that became evidence tends to show May 1, 1924, September of 8, on and continued until defendant 1925. Insurance president of the Standard Before Life negotiations Company, and, president Standard, of the while opened exchange Regis with Yrooman, relative to the of Apartment Company building in for the Standard Life Insurance Regis, Knowing Decatur. sell of Yrooman’s desire to- the St. president
Paisley defendant, sent for after he beсame of rel- trading ative to for farm He the St. defendant’s lands.
requested furnish him Plain- Carter to a list of defendant’s lands. any way.- Paisley
tiff assist in heard did not the deal in had never Paisley plaintiff plain- of until suit was' filed. knew of meetings with Carter and Yrooman. Carter testified for tiff’s tended to defendant and his evidence show that he never em- ployed plaintiff as an or broker of and never any agreed plaintiff pay any would commission anything company deal. He solicited to do never Plaintiff, request, or his without sub- asked him to come to office. down. never places
mitted of which were turned a number apart- who produce asked some one trade lands or would expected that he a commission ments. Plaintiff never advised any, if any facts, necessary deal. Other from defendant on opinion. issues, will be adverted to discussion of the or right compensated, following I. A broker’s to be the sale predicated express im- estate, on an owner’s real is or trade of an emplоyment. though A broker, volunteer even plied contract trade, procuring of the is the efficient cause sale or ma.y compensation, be enforce as his service will Thuener, Mo. gratuitous. 317 held to v. [Delahunt 4 86; 9 L. 554; 298; 296 S. W. C. J. R. C. 465, Stevens Wyo. 1, 251 Pac. 49 A. Brimmer, L. R. 919.] beyond ap- evidence demonstrates doubt Gay proached either as the Build- defendant’s treasurer owner ing representative came owner'. Hé unheralded and or as unknown, approach of introduction. with a letter His was for the making offer, Gay Building an offer to trade the purpose an accepted. days A lands. The offer was not few defendant’s farm office, again unsolicited, visited defendant’s treasurer in later, building Palm and located at and, occasion, on this offered to trade a lands. offer farm This Grand avenues to defendant for its offerer, that of an Plainly, the accepted. status ac- refusing to offeree, an making offer, an and that of defendant suggest cept’ evidence does point, offer. Tо this implied. express or employment, either semblance of a contract of dealt arm’s existed, for at they confidential relation Certainly, no con- understand do we length, as traders. Nor tends otherwise. statement pursuant
However, that, contends business was not interested in treasurer of defendant the treasurer’s buildings, arose from employment contract you want and would like to have plaintiff, statement to “What we high apartment property; get us, would be class some one for high in,” apart- “we class that’s we are interested want what high get apart- one has If will class property. ment hunting kind we are property, ment that’s the sir, I plaintiff’s response, right, will lands,” our farm and from “AJI see what I can do.” express contract show an think the evidence tends to
We do not *8 voluntarily ap- employment plaintiff Plaintiff of of defendant. property exchange peared in made an offer to defendant’s office and its showing property. for There is no that defendant listed its compensa- regarding Nothing was said plaintiff. farm lands with Neither or 'by plaintiff paid by defendant. tion to be received that plaintiff’s nor his conversation advised attitude may expected compensation from it. While be that it inferred n agent or plaintiff real treasurer that was a estate the understood subject. cir- broker, yet nothing definitely said on the The was to lead the appearances were such as to be- cumstances treasurer those representing interests, to-wit, was adverse рlaintiff lieve that meeting A offers. contract arises from for whom he made the the knowingly contracting and understand- parties, of the minds of the Prior the treasurer’s ingly into. statement entered high position property, get class some one fo and attitude of an offerer of property of plain- representative or the of others. Unless defendant, for himself understand or informed him that he gave tiff the treasurer to to, treasurer was 'authorized acting assume for So, get when treasurer аdvised him to represented others. plaintiff’s apartment property, high class view of some one may of the treasurer inter- offerer, the statement be an attitude as than wé are interested in more business preted mean tó your high yourself offer us for customer but if will property, exchange our farm will apartment, lands, property we class wanting record is consider trade. evidence a
781 caused the treasurer to understand or assumed that he intended represent Moreover, or broker. defendant as its admitted, for very he could well otherwise, do as he Claude sued E. Yrooman Realty Company and the St. & Investment a commission growing out transaction, of the same that he was the agent or corporation. interprets broker of said This admission showing presented evidence himself under- standing of defendant’s treasurer in the attitude an of offerer of representative and the of others.
Nor do we think the evidence implied is sufficient develop an contract employment. applicable clearest statement of the rule is found in the annotation (Iowa), to Reeve v. Shoemaker 742, N. W. 839, reading: 43 A. L. R. l. c. 850, “Where broker approaches an negotiates owner of real estate and purchase of property, promise certain of his pay no for the voluntarily broker’s implied services rendered will be if the owner justified by is presuming circumstances the broker is a prospective purchaser or representing prospective purchaser is negotiations.”’ in the may upon Before an owner become liable implied contract, is essential that the owner know or has ground reasonable to believe broker are expectation be rceiving payment rendered with the therefor. On subject, this Lockwood, in Atwater v. 45, Conn. l. c. say: being
court “Unless the defendant knew while the service was acting rendered that the such informa or had subject tion on person ordinary as would cause under standing under acting, like circumstances to believe that he was so implication no employment can made. A contract is meeting contracting parties, the minds of the is and where there contract, express party sought no charged to be must such have knowledge, equivalent thereto, or what is before act his mind can subject, and assent to the terms the contract.” [Wein *9 Segnitz house v. Cronin, 250, 68 Conn. A. Atl. In v. 45.] Grossenbach Co., 511, 158 Wis. l. c. 514, 159, 149 N. W. rule the implied is stated thus: “In order to an for pay raise contract to necessary things services several . . . First, are services the must have performed been under give such circumstances as to recipient they gratuitous, the think thereof some reason to not are performed expectation person, not some other but with the of compensation . recipient . . Second, from the raise in order to implied compensate an them, contract to the services have must sought person been beneficial to liable.” A. the be made [43 L. R. 843.] plaintiff approached
The evidence demonstrates defendant that unsolicited; plain- that defendant did not list its farm lands with ; and compensation paid tiff that to be was not mentioned. follows It justified
that surrounding defendant’s the facts circumstances and suggested .though get treasurer in presuming, even that property, some high one with class that a .prospective purchaser representative prospective pur- or the of negotiations. chaser the situation bеfore treasurer The evolved, understanding nothing ordinary man that lead a of would acting for under like to assume that circumstances meeting defendant. fails show there was a evidence charge minds, of defendant with for the not evidence does knowing understanding represent it. or assumed to approaching the treasurer Plaintiff’s actions in warranted as- performed sumption being other the services wer.e person, for was said or done that tended show that de- expected сompensated by understood that be fendant representative defendant, of Plaintiff could become the so as services without rendered, to him for make liable knowingly understandingly given. and If defendant, consent any service, so he did as a volunteer. rendered defendant says represented, broker, corporation Plaintiff as Regis Apartments. This was trade of the Vrooman alleged represent defendant, contract inconsistent himself Vrooman’s .assumption he interested it warrаnts the promise and, consequently, behalf rather than that no implied. may to pay for be services rendered through Carter, de- that, II. Plaintiff maintains the evidence of fendant admits the existence of contract. testimony relied reads: on “Q. expecting bring somebody You were .to you you proposition you
-to who would make which might might A. accept, you We do be not? were right proposition. if he kind made the ‘‘Q. man, you had a bring And he let know that he you, did and possessed a kind Vrooman, Mr. who Clаude might you, not? A. He did. which did he interest together “Q. you Paisley, negotiated, with Mr. And as a result agreement Vrooman, make gentleman, Mr. did this Yes, with him? A. sir.” ques preceding
We -need not determine that answers not,” and ‘‘Yes, sir,” of “He did did,” instead tions, “He .establishes, “No, sir,” signed deposition constituted sub as the notwithstanding, evidence facts, for, evidence stantive they plaintiff’s voluntary, were shows that predicated Tyler first instance. In McKeon a contract say: information (Mass.), 616, 149 N. l. c. court “The E. employed by may broker, seller, who furnished is
783 of by availed him making without him pay liable to a commission.
Taking advantage of the
performed
by
broker,
the
with-
out
original
employment
subsequent
evidence to
show
or
ratification, does not make
liable.”
the
here-
We have
original
tofore shown
employment
that an
exist,
contract of
did not
and we need
298;
elaborate
R. C. L.
C.
We
J.
[4
554.]
see
Law,
of ratification
Ruling
in the evidence.
In 4.
Case
page 299,
subject
on the
of ratification,
said:
warrant
it is
“To
previous request,
inferеnce of a
owner must say
or
some-
do
thing tending
prove
accepted
to
agent
he
the broker as his
something
merely selling
party
than
more
to the
matter —
whom
broker,
acting
while
brought
him.
volunteer,
to
Of
course,
apcepts
the fact
vendor
the benefits
broker’s
of a
efforts does not
him
render
liable to the broker for commissions
theory
on the
ratification,
where
did not know
broker
he
that the
working
Quaere:
in his behalf.”
necessary
plead
Is it
to
ratification?”
[Lipscomb
Talbоtt,
Mo.
Moreover, preceding questions and answers to do not tend show employment. the existence of a contract of may It introducing treasurer; served defendant Vrooman to its may plaintiff brought notice, it be that Vrooman to defendant’s possessed property he of a kind that interested negotiated agreement and that as a result defendant and made an but, predicate liability, without contract on which to voluntary. service rendered knowledge III. he Without and consent the owner whom purports agent represent, permitted to estate broker or is not a real represent Plaintiff stated that both the vendor and vendee. Realty
he was
or broker
the St.
Company.
did not claim that
& Investment
He
parties
trans-
notified either
he
them,
he
assuming
for both of
nor
act
did
action
he was
agency. When
such
dual
their
obtained
consent
state that he
appeared
and assumed
treasurer,
plaintiff approached defendant’s
repre-
able, ready and
agent,
of a real estate
attitude
com-
Cay Building, until
customer,
owner of
sent his
in the role
broker
appear
did not
pletion
the trade.
expected commis-
from whom
merely introducing
customer
his
denominates
The evidence
of the introduction.
because
sions
so, whether
If
customer.
representing a
broker
a real estate
loyal
and
unbiased advice
was entitled
gave
not,
his customer
he also
if
represent his customer
not thus
efforts,
he could
transaction,
interest
represented
party the other
appeared
which
role in
loyalty
be divided.
would
transaction,
parties to the
both
represent
right
denied him the
*11
was against
public policy. The facts
show that
purported to
as
act
a real estate broker
agent,
and not
a mere
as
middleman. Thus, he was not
compensation.
entitled to
[Corder
O’Neill,
v.
IY. Pursuant to our determination any event 'not entitled recover, it is evident that his con tention, judgment should have been for $87,500, non veredicto, obsta/nte cannot be sustained. judgment is reversed. Cooley, CC., Kenwood and concur. PER foregoing opinion by adopted CURIAM: —The Davis, C., is opinion as the judges the court. All of the concur. Company ; of Macon Farmers Trust County, Appellant,
Macon State Finance Cantley, L. as Commissioner S. Deputy Commissioner English, Missouri; Alonzo Company. Farmers Trust Charge Assets said Finance (2d) 1096. W. S. July Two, 3, 1930. Division notes that his testified “He after not, did,” and, “Yes, sir,” and that the word “He “Yes, sir” were ink, did” was written in in changed and that the words time sir,” apparently by the witness at the “No, said reporter signing deposition. On cross-examination, correcting deposition before privilege witness has depo- developed signing testimony His other corrections