Bigham v. Schneider

• Decision Date: 01 December 1941
• Docket Number: No. 20022.,20022.
• Citation: 157 S.W.2d 547
• Parties: BIGHAM v. SCHNEIDER et al.
• Court: Missouri Court of Appeals

157 S.W.2d 547

BIGHAM v. SCHNEIDER et al.

No. 20022.

Kansas City Court of Appeals. Missouri.

December 1, 1941.

Rehearing Denied January 5, 1942.

Error to Circuit Court, Buchanan County; Sam Wilcox, Judge.

"Not to be published in State Reports."

Suit by B. B. Bigham against William J. Schneider and others to recover real estate commission. To review a judgment in favor of the plaintiff, the defendants bring error.

Judgment reversed, and cause remanded.

Randolph & Randolph, of St. Joseph, for plaintiffs in error.

Horace Merritt, of St. Joseph, for defendant in error.

SPERRY, Commissioner.

Plaintiff, B. B. Bigham, sued defendants, Midwest Savings and Loan Association, a corporation, Wm. J. Schneider and Lawrence N. Schneider for a real estate commission allegedly due him from defendants. Upon a jury verdict in his favor, judgment was rendered for plaintiff against all defendants in the sum of $175. Defendants have brought the case here on writ of error.

Plaintiff pleaded that he was a regularly licensed real estate agent, and that defendants, Wm. J. Schneider, president, and Lawrence N. Schneider, secretary of defendant corporation, acting for themselves and also in their capacity as agents for said corporation, employed him to sell a certain piece of real estate, known as No. 1 Wank house, and agreed to pay him as commission for his services 5% of $6,000, the agreed valuation of the property; that he accepted said employment; that the house was sold to a purchaser procured by him; that defendants thereby became indebted to him in the sum of $300; and that defendants have refused to pay him any part of his commission of $300, for which he sued. Defendants filed a general denial.

Defendants' first contention is that plaintiff failed to make out a case for the jury against any one of said defendants. Disposition of this question requires a rather complete statement of the facts in evidence, and the application of the well known rule of law that all facts and circumstances in evidence offered by plaintiff, favorable to plaintiff's theory of the case, must be taken as true; that all reasonable inferences favorable to plaintiff's case which may logically be drawn from such facts and circumstances must be drawn; and that all conflicting evidence unfavorable to plaintiff's theory, together with inferences to be drawn therefrom must be rejected.

Midwest Savings and Loan Association is engaged in loaning money on real estate and Wm. J. Schneider is president and Lawrence N. Schneider is secretary of said corporation, and are in charge of its business.

Plaintiff testified that defendant Wm. J. Schneider called him by telephone and invited him to come to the office of the Midwest; that he went to said office and was there told by Wm. J. Schneider that the Midwest held a deed of trust against several houses that had been built on lots owned by a Dr. Wank, in the city of St. Joseph; that the deeds of trust represented "construction" loans made by Midwest to Dr. Wank, to finance the building of said houses; that said loans, and interest thereon, were in default; and that Schneider said to him: "Bert, we have selected you as real estate man to try to dispose of, and sell Wank's property and I want you to go and look them over with me and see what you think about it."

He further testified: "* * * At that time he went with me and got the keys to Mr. Wank's property and Mr. Wank said Mr. Holbert has the keys. We went to get them. We looked the property over and I put my signs in every one and tried to sell them. I got several buyers for them but no one seemed to have the money to pay Mr. Wank like he wanted it. I finally got a man who wanted to trade and he put up his properties and Mr. Wank and his wife and the two Schneiders and Mr. Randolph went out and looked it over to see if they could transfer the mortgage on the duplex."

He testified that the man whom he had interested was a Mr. Wray, who wanted to acquire one of said houses, known as No. 1, upon which Midwest held a mortgage in the amount of $4,200, which mortgage was then in default; that Wray would not buy but wanted to trade his house and pay $1,000 cash difference; that he introduced Wray to Mr. Schneider and told him of the proposal; and that:

"Well, we spent probably an hour looking it over out there and Mr. and Mrs. Wank asked Mr. Schneider if he would put the loan over on that property and he said if they would he would trade for it, so I was to fix up the contract the next morning and I got the abstract from Mr. Wray that night and Mr. Schneider had the other abstract in his office so I went up there and got the two abstracts and I couldn't use the typewriter and the book-keeper said, `I will make that contract' and he did.

* * * * *

"We went out to look the house over and I had to introduce him. They never had seen him before. We all met there in cars and we went through the house."

He further testified that Mr. Schneider stated that defendants would transfer the $4,200 loan on the Wank house to the Wray house; that Mr. Wray was willing to make the trade; that Mr. Wank agreed to make the deal; that plaintiff procured and delivered to defendants the abstract on the Wray property; that a contract between Wank and Wray was drawn in the office of defendants; and that, after said contract was drawn and plaintiff had put same in his pocket, the telephone rang and defendant, Lawrence Schneider, said to plaintiff: "Somebody at the telephone wants to talk to you"; that he answered the telephone and Mr. Wank told him that he would not go through with the deal because "They filed a lien against it * * *. Let them foreclose it or take it or do what they want." Plaintiff further testified: "and Lawrence said, `We will foreclose it; we will make the trade ourselves. You just hold Mr. Wray in readiness'; and I said:...