Alter v. John McMenamy Investment & Real Estate Co.

• Decision Date: 07 June 1932
• Docket Number: No. 21690.,21690.
• Citation: 50 S.W.2d 691
• Court: Missouri Court of Appeals
• Parties: ALTER v. JOHN McMENAMY INVESTMENT & REAL ESTATE CO. et al.

50 S.W.2d 691

ALTER v. JOHN McMENAMY INVESTMENT & REAL ESTATE CO. et al.

No. 21690.

St. Louis Court of Appeals. Missouri.

June 7, 1932.

Rehearing Denied June 21, 1932.

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

"Not to be officially published."

Action by Harry Alter against the John McMenamy Investment & Real Estate Company and another. From a judgment for plaintiff, named defendant appeals.

Affirmed.

Malcolm McMenamy, Chas. F. Mueller, and Banister, Leonard, Sibley & McRoberts, all of St. Louis, for appellant.

White & White and Hope & Hope, all of St. Louis, for respondents.

BENNICK, C.

This is an action for the amount alleged to be due to plaintiff, Harry Alter, as his commission for assistance rendered by him in connection with the sale of certain real estate known as 4064-68 Finney avenue, in the city of St. Louis.

The transaction in question occurred in the late fall of 1925. Plaintiff, who is a real estate agent, was associated at the time with the Katz-Alter Realty Company, though the firm itself has no connection with the case. The original defendants were the John McMenamy Investment & Real Estate Company, a corporation, the appellant herein, and R. P. Rielley, the owner of the property, for whom appellant was acting as agent.

The action originated in a justice's court in the city of St. Louis, wherein plaintiff prevailed over appellant, having meanwhile dismissed as to defendant Rielley. An appeal was taken to the circuit court, where plaintiff again prevailed, the judgment going in his favor, and against appellant, in the sum of $647.50, and costs. The appeal to this court has followed in the usual course.

The only pleading in the case was the petition filed by plaintiff in the justice's court, but, inasmuch as no point is made in regard to its form or sufficiency, its contents need not be particularly noted.

Plaintiff testified that he knew that a Mr. Gold, an acquaintance of his, who was operating a drug store at Twenty-Third and Market streets, desired a new location in the neighborhood of Finney avenue. Chancing to pass by the property in question, he noticed appellant's sign on the building, whereupon he called appellant's office, and talked with Mr. Walsh, appellant's secretary, asking him the price of the property. Walsh told him the price was $23,500, but that, if he submitted an offer, they might take less. Plaintiff thereupon informed Gold about the property, and took him over and showed him through the building. Negotiations continued, resulting, on November 10, 1925, in the execution of an earnest money contract, signed and approved by all the parties, for the sale of the property at a consideration of $22,500.

Plaintiff also testified that, in the course of the transactions leading to the execution of the above contract, he and Walsh discussed the matter of his commission, and that it was agreed that he and appellant would share the commission equally, the same to be the regular commission provided by the rules of the real estate exchange. The deal was finally closed in accordance with the contract, but, when plaintiff went to appellant's office to collect his share of the commission, Walsh informed him that he was entitled to no commission, and refused to make payment to him.

The substance of appellant's evidence was that there had been no such agreement with plaintiff to share the commission on the sale, but that the fact was that the division of commission was made with the Silverblatt Real Estate Company, which was Rielley's original agent. It does appear that appellant had represented the former owner of the property in question in its sale to Rielley in October, 1925, just prior to the inception of the transaction in which plaintiff was involved, and that the underlying purpose of the subsequent transaction was to effect a sale from Rielley to Gold so that Rielley would realize a net profit of $1,750 on the deal.

The matters for consideration on this appeal go to the alleged error of the court in connection with the exclusion of evidence.

It is to be borne in mind that plaintiff is relying upon a verbal agreement entered into with appellant on or about November 10, 1925, the date of the execution of the earnest money contract. To such contract appeared the names of Gold, Rielley, appellant, and plaintiff. It was the usual form of earnest money contract, and its terms are of unimportance save for the provision inserted therein that "the undersigned seller herein (Rielle...