Bailey v. Hercules, 20835.

• Decision Date: 07 January 1930
• Docket Number: No. 20835.,20835.
• Citation: 22 S.W.2d 855
• Parties: BAILEY v. HERCULES.
• Court: Missouri Court of Appeals

22 S.W.2d 855

BAILEY v. HERCULES.

No. 20835.

St. Louis Court of Appeals. Missouri.

January 7, 1930.

Appeal from St. Louis Circuit Court; Granville Hogan, Judge.

"Not to be officially published."

Action by David Bailey against Joseph G. Hercules, Jr. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

James P. Maginn and Frank Coffman, both of St. Louis, for appellant.

Leighton Shields and Richard A. Jones, both of St. Louis, for respondent.

BECKER, J.

This is an action by plaintiff, a realtor, to recover commissions alleged to be due him in connection with the sale of certain property owned by defendant. The case was tried to a jury, who returned a verdict in favor of plaintiff, and from the resulting judgment, defendant appeals.

As to the pleadings, it is sufficient to state that plaintiff's amended petition, among other things, alleges: "That on or about the 24th day of February, 1924, defendant * * * employed plaintiff to procure purchaser for said real estate and agreed to make payment to him of the usual commission therefor, * * * which employment plaintiff then accepted, and thereafter, in pursuance thereof, procured a purchaser for said property, the Vesper-Buick Automobile Company, a corporation, which made purchase of same for a price acceptable to defendant, approximately $100,000, which transaction was finally closed, and defendant, in accord therewith, caused conveyance of said real estate to be made thereunder to said purchaser during September, 1924."

Since appellant urges here that the trial court erred in overruling his request for a peremptory instruction in the nature of a demurrer to the evidence, offered at the close of the whole case, we set out that portion of the testimony which in our opinion, when viewed in the light most favorable to plaintiff, shows that the demurrer was well ruled.

There is evidence which tends to prove that the plaintiff was a real estate broker, and the defendant a builder and contractor; that the defendant, in the early part of 1924, became the owner of a certain piece of vacant property located in the city of St. Louis, Mo., fronting 164 feet on the east line of Kingshighway boulevard, being the southeast corner of that street and McPherson avenue, the record title to which was held in the name of Marie Hercules, defendant's sister. Upon defendant telling plaintiff of his purchase of this property, and that he would want a buyer or a lessee thereof, plaintiff agreed to, and endeavored to, find a purchaser or lessee for whom defendant would erect a suitable building on the property. The defendant, on this occasion, told plaintiff that he would accept $1,000 per foot for the property. A short time thereafter the defendant improved the south 57 feet of the property with a building, which he leased, under a long-term lease, to the Marx-Jones Decorating Company. Plaintiff had nothing to do with this transaction.

Following this, or about the time said building was completed, plaintiff sought to interest the Vesper-Buick Automobile Company in the remaining vacant ground, approximately 107 feet on Kingshighway boulevard, and took the defendant to the country home of F. W. A. Vesper, president of the automobile company, where a general discussion ensued as to the availability of the defendant's property for use by the automobile company for a West End branch. Before any specific proposition had been offered by the Vesper-Buick people or made by defendant with reference to the property, the defendant improved the north 50 feet of the remaining unimproved property by building a gasoline filling station thereon, and leased it to the Lubrite Company, together with a triangular piece of what remained of this vacant property, fronting 50 feet on Kingshighway boulevard to a point on McPherson. Plaintiff had no hand in the making of this lease. There was now left vacant approximately 57 feet on Kingshighway boulevard, running back in an irregular shape for 75 feet, and then the remaining distance of 107 feet to the full depth of the lot, which was about 250 feet.

Plaintiff continued his efforts to either sell or lease this remaining 57 feet of vacant ground to the Vesper-Buick Company. Many conferences were had between plaintiff, the defendant, and Mr. Vesper, and occasionally some other officer of the automobile company was present. Plans were drawn for a proposed building, which the defendant was to build for the automobile company in the event of a sale or lease. Plaintiff submitted these plans to Mr. Vesper, together with the estimated cost of the building, the architect's fee, and commission on loans contemplated to carry the project through. Under date of July 23, 1924, Mr. Vesper wrote plaintiff as follows: "After giving the matter very careful consideration, I am afraid that the proposition at McPherson and Kingshighway is out of our reach on the basis submitted. If a lease proposition could be worked out, or some proposition in which Mr. Hercules would do his own financing, thus relieving us of the commissions and the architect's fees, we might still be interested." Mr. Vesper testified, concerning this letter, that he did not thereby advise plaintiff that he was no longer interested in the purchase of the property, but was objecting to the carrying charges, commission on loans, etc., which made the total price beyond their reach.

Plaintiff submitted this communication to the defendant, and immediately caused other plans and figures to be prepared on the contemplated erection of a two-story building, which plaintiff submitted to Mr. Vesper about the 25th of July, 1924. As to this latter proposition, Mr. Vesper testified that he did not write any letter in answer thereto, but simply told plaintiff that he was not satisfied with the same and declined it, but that, despite this failure to get together, he was still interested in the location.

In the month of August, Mr. Vesper, who was a director in the Federal Commerce Trust Company, opened up negotiations with said trust company for them to purchase this property for the account of the Vesper-Buick Automobile Company. When W. L. Hemmingway, president of the Federal Commerce Trust Company, was informed that the Vesper-Buick Automobile Company was desirous...