Bader v. Beck

• Decision Date: 31 August 1939
• Docket Number: No. 6025.,6025.
• Citation: 173 S.W.2d 647
• Court: Missouri Court of Appeals
• Parties: BADER v. BECK.

173 S.W.2d 647

BADER v. BECK.

No. 6025.

Springfield Court of Appeals. Missouri.

August 31, 1939.

Appeal from Circuit Court, Pemiscot County; Louis H. Schult, Judge.

"Not to be published in State Reports."

Action by J. W. Bader against R. M. Beck for plaintiff's agreed share of commissions earned by defendant on sales of realty. From a judgment of dismissal, plaintiff appeals.

Affirmed.

C. G. Shepard, of Caruthersville, for appellant.

Ward & Reeves, of Caruthersville, for respondent.

FULBRIGHT, Judge.

On January 18, 1938, plaintiff filed his original petition in this cause, secured a writ of attachment in aid thereof, and had garnishment summons served on George R. Crockett and Cecil Sayre. On April 18, 1938, defendant filed his amended answer and thereafter on the same date and the day before the cause was set for trial plaintiff filed his amended petition. Thereupon defendant filed his motion to strike the amended petition for the reason that it was not timely filed and for the further reason that it was not an amendment of plaintiff's original cause of action, but the substitution of a new and different cause of action. The trial court took the motion under advisement, and on August 8, 1938, sustained same. Upon plaintiff's refusal to plead further, and electing to stand on his amended petition, it was ordered by the court that plaintiff take nothing by his writ; that his cause of action be dismissed; and that defendant recover of plaintiff his cost. From this order and judgment plaintiff has appealed.

Omitting formal parts, the original petition is as follows:

"Plaintiff states that he is a licensed real estate broker, licensed under the laws of the State of Arkansas, and maintains an office in the City of Blytheville, County of Mississippi, and State of Arkansas.

"That on the ____day of ____, 1936, defendant entered into a contract with plaintiff by the terms of which defendant was to solicit lands to be listed with plaintiff and defendant for sale, both in the State of Arkansas, and of Missouri; that defendant during all of the times herein mentioned worked with plaintiff and plaintiff sustained all expenses in connection with the office for both plaintiff and defendant in said real estate business; that under the laws of the State of Arkansas, it was necessary for the real estate salesman to have connection with a real estate broker and defendant was a licensed real estate salesman under the State of Arkansas, working with plaintiff as a real estate broker; that defendant could not have sold real estate or contracted for the sale thereof in the State of Arkansas without having connection with a broker.

"That defendant continued to work with plaintiff in the capacity aforesaid and continued to have the use and benefit of plaintiff's office until the ____ day of December, 1937, that during the time defendant was working with plaintiff, as aforesaid, and using plaintiff's office, he contracted for the sale of certain lands in the State of Missouri, belonging to Frey Brothers of Kennett, to be sold to Johnny Wider and Pool, upon which he received a commission of $350.00.

"That during said time he made a sale of certain lands in the State of Missouri for Cecil Sayre to James M. Walker, upon which he received a commission of $250.00.

"That during said time he made a sale for Pierce and Cunningham of certain lands in Missouri to Cecil Sayre upon which he received a commission of $210.00, making a total commission, so received, in the sum of $810.00.

"That all of said land was listed and the sales contracted during the time defendant was connected with plaintiff and using plaintiff's office, but defendant did not complete the sales until he left plaintiff's office, thereby attempting to defeat plaintiff's commission due on the transactions above mentioned.

"That under the terms of the contract between plaintiff and defendant, plaintiff was to receive 30% of the commissions so earned and defendant was to have for his services 70% thereof; that 30% of the commissions which is due plaintiff amounts to $243.00."

The cause of action as stated in the amended petition, in which George R. Crockett and Cecil Sayre are added as defendants, is as follows:

"Plaintiff states that he is and was at all times herein mentioned a licensed real estate broker, licensed under the laws of the State of Arkansas, and during said time maintained an office in the City of Blytheville, County of Mississippi, and State of Arkansas; that on the ____ day of ____, 1936, plaintiff entered into a contract with defendant R. M. Beck, by the terms of which the said Beck was to act as a licensed real estate salesman working by, through and under plaintiff as a broker; that under Act 148 of the year 1929, of the Legislature of the State of Arkansas, as amended by Act 142 of the legislative enactments of 1931 of the State of Arkansas a real estate salesman could only sell real estate, except that of his own, by and through the office of a broker, which said legislative enactments plaintiff pleads and makes a part of this petition.

"That on January 1, 1937, defendant R. M. Beck's license was renewed by the Arkansas Real Estate Commission as provided by law and in said license plaintiff J. W. Bader was named as the broker through whom defendant R. M. Beck would work as a real estate licensed salesman, which said license was for the entire year of 1937; that by the terms of said agreement between plaintiff and defendant Beck, it was agreed that said defendant Beck would act as a licensed real estate salesman for the entire year of 1937, working under plaintiff as a broker; that the said R. M. Beck would solicit land for sale on commission, both in Arkansas and in the State of Missouri, and it was agreed that defendant Beck would receive and be entitled to 70% of the commissions earned on sales made both in the State of Arkansas and in the State of Missouri during said time and that plaintiff J. W. Bader should receive and was entitled to 30% of all commissions earned on sales made both in the State of Arkansas and in the State of Missouri during said time.

"That defendant R. M. Beck continued to work with the plaintiff in the capacity aforesaid and continued to have use and the benefit of plaintiff's office until the ____ day of December, 1937; that during the time defendant was working with plaintiff as aforesaid and using plaintiff's office, he had placed with him for sale certain lands in the State of Missouri belonging to Frey Brothers of Kennett, which said land was by the said R. M. Beck, sold to Johnny Wider and Pool, for the sale of which he received and earned a commission of $350.00; that said land was placed with the said R. M. Beck for sale during the time he was working out of plaintiff's office under the terms aforementioned and that by the terms of said contract, plaintiff is entitled to receive 30% of said $350.00 commission earned in making the sale of said land.

"That during said time and while defendant R. M. Beck was working out...