Lewis v. Thompson

Decision Date15 June 1936
Docket NumberNo. 18617.,18617.
Citation96 S.W.2d 938
PartiesRUSSELL F. LEWIS, RESPONDENT, v. MAUD THOMPSON, EXECUTRIX OF THE ESTATE OF MILTON THOMPSON, DECEASED, APPELLANT.
CourtMissouri Court of Appeals

Appeal from the Circuit Court of Jackson County. Hon. Marion D. Waltner, Judge.

AFFIRMED.

C.W. Prince, James N. Beery, and Ben R. Estill for respondent.

Ryland, Stinson, Mag & Thompson and Alfred M. Seddon for appellant.

REYNOLDS, J.

On April 2, 1932, the plaintiff, Russell F. Lewis, filed and exhibited for allowance in the probate court of Jackson County, Missouri, at Independence, his verified demand in the sum of $5000 against the estate of Milton Thompson, deceased, (in course of administration in said court) for services claimed to have been rendered by plaintiff in the early months of 1927 up to and including April 2, 1927, to the said Thompson in the sale of two lumber yards operated by the Thompson-Parker Lumber Company, unincorporated, in which company the deceased Thompson was a partner and practically the owner, located at Lees Summit and Raytown, Missouri, and for services alleged to have been rendered in procuring buyers for the real estate on which said lumber yards were located.

From an allowance of the demand by the probate court, an appeal was taken by Maud Thompson, the executrix of the estate of Milton Thompson, deceased, in charge of the administration thereof, to the Circuit Court of Jackson County, Missouri, at Independence.

In the circuit court, the defendant (the administratrix) filed a written answer to such demand, in which she denied that the claimant, Russell F. Lewis, had any lawful or just claim or demand against the estate of the deceased and in which she denied that such estate was indebted to the claimant in any amount. The answer also pleaded in bar of said demand the five year general statute of limitation of Missouri and the special one-year statute of limitation applicable to the administration of estates of deceased persons.

The cause was tried de novo in the circuit court before a jury, resulting in a verdict and a judgment rendered thereon against the defendant executrix and in favor of the plaintiff in the sum of $3400 at the December term, 1934.

From such judgment so rendered against her, the defendant executrix, after unsuccessful motions for a new trial and in arrest of judgment, prosecutes this appeal.

The evidence tends to show that the Thompson-Parker Lumber Company was a partnership composed of Milton Thompson and H.L. Parker and his wife, Laura M. Parker; that, in the early part of the year 1927, it was the owner of two lumber yards, one at Lees Summit and the other at Raytown, Missouri; that, in March, 1927, the plaintiff called on one Mr. W.B. Jones, an officer of the J.C. Jones Lumber Company, at Lees Summit, and informed him that the said yards of the Thompson-Parker Lumber Company were for sale and sought to ascertain whether he would be interested in buying them; that Mr. Jones advised him that he was not interested; that, shortly afterwards, the plaintiff again called on Mr. Jones; that Mr. Jones, in the meantime, had talked with Mr. B.T. Moore of the Logan-Moore Lumber Company of Kansas City, Missouri, and advised him that the said yards of the Thompson-Parker Lumber Company were for sale and, in the buying of which yards, Moore appeared to show some interest; that, on this second trip, the plaintiff submitted to Mr. Jones a price for the yards for consideration by Mr. Moore, which price was rejected by Mr. Moore; that, thereafter, plaintiff again called on Mr. Jones and submitted another and lower price, which resulted in a deal for the sale of the yards to the J.C. Jones Lumber Company being closed with the J.C. Jones Lumber Company by the plaintiff; that a written agreement of date March 23, 1927, was thereupon executed by W.B. Jones for the J.C. Jones Lumber Company and by H.L. Parker for the Thompson-Parker Lumber Company, by the terms of which the Thompson-Parker Lumber Company agreed to sell and the J.C. Jones Lumber Company agreed to buy the lumber yards, including the real estate and improvements, furniture and fixtures, delivery trucks and equipment, together with the merchandise of lumber on hand in said yards; and that the sale price of the real estate was agreed upon and incorporated in the written agreement at the sum of $37,000.

The evidence further tends to show the following: By the terms of said written agreement, the seller and the buyer also agreed on certain printed price lists which established the wholesale price for various grades and kinds of lumber, from which price lists the sale price of the lumber merchandise stock (based upon an inventory or invoice of the lumber on hand in the two yards) was to be computed. On March 24, 1927, the J.C. Jones Lumber Company assigned the written agreement of purchase to the Logan-Moore Lumber Company, which thereupon became the buyer of the lumber yards in the place and stead of the J.C. Jones Lumber Company. The inventory of the lumber merchandise at the Lees Summit lumber yard was completed on March 26, 1927; and, on said date, the Logan-Moore Lumber Company took full and complete possession of that yard and began to make sales of lumber on its own account. The inventory of the lumber merchandise at the Raytown yard was completed on April 2, 1927, although possession of such yard was transferred on March 30, 1927. The Thompson-Parker Lumber Company had nothing to do with either of the yards after March 30, 1927. In pursuance of the written agreement, the real estate was conveyed to the Logan-Moore Lumber Company, by the sellers (Milton Thompson, H.L. Parker, and Laura M. Parker) by warranty deed on March 24, 1927. On April 2, 1927, one Mr. Rudolph Jackson, secretary of the Logan-Moore Lumber Company, and Mr. H.L. Parker of the Thompson-Parker Lumber Company computed the sale price of the lumber merchandise from the inventories as made at the two yards using the agreed price lists as the basis of the computation and ascertained the total amount of the consideration to be paid to the seller, Thompson-Parker Lumber Company, by the buyer, Logan-Moore Lumber Company, which consideration amounted to $92,846.54 and represented the sales price of the real estate, buildings, fixtures, delivery equipment, and the stock of merchandise comprising the yards at Lees Summit and Raytown. Mr. Jackson thereupon wrote out and delivered to Mr. Parker the check of the Logan-Moore Lumber Company dated April 2, 1927, payable to the order of the Thompson-Parker Lumber Company for the sum of $92,846.54, in payment of the total consideration of the sale of the lumber yards in question. The deal for the sale of the two lumber yards with the J.C. Jones Lumber Company appears to have been closed by the plaintiff. His efforts were the procuring cause. During the negotiations for the sale of the lumber yards, the plaintiff and Mr. Milton Thompson drove Mr. W.B. Jones from Lees Summit to Raytown to look over the Raytown yard, on which trip there was some discussion and conversation with respect to the proposed sale of the yards. During the conversation between himself and Mr. W.B. Jones with reference to the sale and purchase of said yards, plaintiff, on one or two occasions, called Mr. Thompson over the telephone and discussed with him the matter of the sale of the yards. At one time, when Mr. Jones was at the home of plaintiff, plaintiff called Mr. Thompson on the telephone with respect to the sale price of the yards; and Mr. Thompson submitted a certain price or agreed to a certain price, at which Mr. Jones agreed to buy. All of the activities on the part of plaintiff in the sale of the yards in question were prior to March 24, 1927.

There is evidence tending to show that Mr. Milton Thompson was the owner of a number of farms and other properties and that there was a working arrangement between him and plaintiff under which plaintiff was engaged in making sales and trades of properties belonging to Mr. Thompson and had been actively so engaged since January 1, 1927.

There is evidence tending to show that plaintiff was engaged the greater part of the month of March, 1927, in an endeavor to make a sale of the Thompson-Parker Lumber Company yards and that, during such time, both Mr. Thompson and Mr. W.B. Jones of the J.C. Jones Lumber Company were frequently at the home of the plaintiff.

It seems to be agreed by both parties in their briefs that the main issues joined by the pleadings and tried in the circuit court are whether the demand and cause of action of the plaintiff are barred by the five-year statute of limitation and whether the plaintiff was employed by the Thompson-Parker Lumber Company and the deceased Milton Thompson as a partner therein to procure a buyer for the lumber yards in question.

The claim or demand of the plaintiff is upon quantum meruit for the reasonable value of the services alleged to have been rendered by the plaintiff. No written contract of employment of the plaintiff is shown in evidence upon the trial, nor is there any evidence of any compensation in any fixed or other sum that was agreed to be paid by the deceased, Milton Thompson, to the plaintiff for services performed by him in the making of such sale. There is no evidence of any agreement between plaintiff and Mr. Thompson with reference to the compensation, if any, to be paid. His claim for compensation rests entirely on the services performed and the reasonable value thereof.

There is evidence tending to show that the reasonable value of services of the character performed by plaintiff in the communities in which the lumber yards in question were situated ranged from a commission of two and one-half per cent to one of five per cent on the sale price of the said yards. There is other evidence tending to show that the usual and ordinary compensation for finding a buyer for a yard was $250 a yard or $500 a yard where...

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