Bartlett v. Garrett
| Citation | 175 S.W. 79,188 Mo.App. 144 |
| Parties | CHARLES W. BARTLETT, Respondent, v. WILLIAM L. GARRETT et al., Appellants |
| Decision Date | 01 February 1915 |
| Court | Court of Appeals of Kansas |
Appeal from Jackson Circuit Court.--Hon. O. A. Lucas, Judge.
REVERSED IN PART. REMANDED IN PART.
R. M Sheppard, J. P. McCammon and J. T. Craig for appellants.
(1) The plaintiff was not entitled to recover as against any of the defendants unless he showed by the greater weight and preponderance of the evidence that his efforts were the procuring or inducing cause of the loan being made by the National Reserve Bank to the defendants. Duncan v Hills, 155 Mo.App. 709. (2) To entitle a real estate broker to his commission he must be the procuring and inducing cause of the sale. It is not sufficient that the act of the broker was one of a chain of causes bringing about the sale. Crain v. Miles, 154 Mo.App. 338; Real Estate Co. v. Real Estate Co., 144 Mo.App. 625; Russell v. Poor, 133 Mo.App. 723.
Langsdale & Howell for respondent.
(1) Defendants' demurrers were properly overruled. Murphy v. Knights of Columbus, 155 Mo.App. 659; Concannon v. Milling & Mining Co., 156 Mo.App. 79; Forsythe v Albright, 149 Mo.App. 515; Herrick v. Woodson, 143 Mo.App. 258; Herrick v. Maness, 142 Mo.App. 399; Sallee v. Murry, 113 Mo.App. 253; Morgan v. Keller, 194 Mo. 663. (2) The portions of the depositions of defendants were properly admitted by the court as admissions of said defendants. Valleroy v. Knights of Columbus, 135 Mo.App. 574; Gubernator v. Rettalack, 86 Mo.App. 184. (3) Instruction number 1, given on behalf of plaintiff, stated the law of this case. Reardon v. Railroad, 114 Mo. 406; Hovey & Brown v. Aaron, 133 Mo.App. 573; Schaaf v. Basket & Box Co., 151 Mo.App. 35; Phelps v. Zinz & Lead Co., 218 Mo. 572; Wise v. Railroad, 135 Mo.App. 230; Markey v. Railroad, 185 Mo. 348.
The defendant Fidelity and Casualty Company is a corporation located at Springfield, Missouri, and Hines, Montgomery, Ramsey, Coffman, Garrett, Schneider, W. & J. Taylor, McCammon, Boyd, McJimsey and Austin, the other defendants are directors. Plaintiff claims that they employed him, and agreed to pay him $ 5000 "to locate a bank or trust company in Kansas City which would lend them, or a part of them, $ 75,000 on certain terms and conditions." That in pursuance of said employment he did find a bank and a trust company, either of which would make the loan. That afterwards defendants obtained the loan from the bank, and then refused to pay him the sum agreed upon for his services. At the close of his case, plaintiff voluntarily dismissed as to the Casualty Company and Ramsey and the trial court directed a verdict in favor of the defendants Coffman, Hines and Montgomery for want of evidence against them. The case was then submitted to the jury as against Garrett, Schneider, W. & J. Taylor, McCammon, Boyd, McJimsey, and Austin and a verdict rendered for plaintiff.
Stating first our view of the legal aspect of the case, we think that if one is employed by another to find a third party who will make a certain loan to him and such employee finds a third party, able, willing and ready to make the loan, he may recover the compensation agreed upon for the service.
In this case the Casualty company was being organized by the other defendants (except William Taylor who came in afterwards as directors thereof. Defendant Austin was authorized to sell stock, he being paid a commission and certain stock had been sold by him, but there was not yet sufficient showing of capital to justify permission from the State Insurance Commissioner to open to the public for business. The directors set about to borrow $ 75,000 and made an effort in St. Louis and failed. They then came to Kansas City and succeeded in borrowing $ 75,000 of the national Reserve Bank, on their note at six per cent due in six months, secured by $ 100,000 of the stock. The note was given for $ 77,500, the $ 2500 excess represented what was termed "a commission" to the bank.
Plaintiff's claim is that he procured the bank and that such bank would make the loan, and that he so notified defendants and that they thereupon accepted his service by borrowing the money in the manner stated. We think that, as against defendant William Taylor, there was evidence to sustain the verdict. There was evidence tending to show that he obtained plaintiff's services to find a bank which would lend the required sum of money and that he promised to pay plaintiff for that service the sum of $ 5000, if he procured the loan.
It is true that the bank officers denied that plaintiff had anything to do with the loan, or that he, in anyway, influenced their action. But when a verdict is attacked on the ground of not being supported by evidence, we are more concerned with what the evidence is on the part of him who gains the verdict than with the evidence for the loser.
But as to the other defendants against whom the verdict was rendered, we think there was no substantial evidence whatever that they had any contractual relations with plaintiff directly, or that they authorized Taylor to represent them. Plaintiff himself, in testifying in his own behalf, stated that he never spoke to or communicated with either of them, until nearly a year after the transaction. These defendants were themselves examined as witnesses and each denied authority for Taylor to represent them. Defendant Garrett, had heard Taylor say that he believed defendant Austin (who was selling the stock) could get the money desired through plaintiff, if the directors would pay the commission to plaintiff and Austin. But he refused to have anything to do with it.
To sustain the verdict against these defendants, other than Taylor, would be to say that business men may be held to have contracted to pay a large amount to secure a loan of money, on conjecture or surmise drawn from the mere fact that they obtained a loan. As just stated, plaintiff makes no pretense of dealing with any one besides Taylor; it seems never to have occurred to him to inquire of those he now claims to have served, whether they had authorized his employment. He never inquired at the bank whether it, the loan, had been made, and a year seems to have elapsed before he made the present demand. All of the officers of the bank testified that he had nothing to do with procuring the loan. Taylor and Burrows, a vice president of the bank, each testified that they were acquaintances of several years, the former stating that...
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