Bopp v. Jetama Inv. Co.

• Decision Date: 06 October 1936
• Citation: 96 S.W.2d 877,231 Mo.App. 815
• Parties: PETER C. BOPP, RESPONDENT, v. JETAMA INVESTMENT COMPANY, A CORPORATION, AND A. A. JEKEL (DEFENDANTS), JETAMA INVESTMENT COMPANY, A CORPORATION, APPELLANT
• Court: Missouri Court of Appeals

96 S.W.2d 877

231 Mo.App. 815

PETER C. BOPP, RESPONDENT, v. JETAMA INVESTMENT COMPANY, A CORPORATION, AND A. A. JEKEL (DEFENDANTS), JETAMA INVESTMENT COMPANY, A CORPORATION, APPELLANT

Court of Appeals of Missouri, St. Louis

October 6, 1936

Opinion Modified; Motion for Rehearing Overruled October 20 1936.

Appeal from Circuit Court of St. Louis County.--Hon. Julius R Nolte, Judge.

AFFIRMED.

Judgment affirmed.

George Eigel and John F. Gillespie for appellant.

(1) It is not sufficient for a broker to find a purchaser and open negotiations, but he must find a buyer ready, able, and willing to pay the price he is authorized to accept or he must be the procuring and inducing cause of a sale to him at a less price. Crain v. Miles, 154 Mo.App. 338, l. c. 348, 134 S.W. 52, l. c. 55; Schwabe v. Estes, 202 Mo. 372, l. c. 375, 218 S.W. 908, l. c. 909; Meredith v. Martin, 9 S.W.2d 860, l. c. 861; English v. Page, 236 S.W. 392; Mead v. Arnold, 110 S.W. 656, l. c. 658, 131 Mo.App. 214, l. c. 222; Dillard v. Field, 168 Mo.App. 206, l. c. 212, 153 S.W. 532, l. c. 534; Hughes v. Dodd, 146 S.W. 446, l. c. 448. (2) Where the owner does not interfere with the making of a sale by the broker and the latter is unable to obtain from a prospective purchaser the price he is authorized to accept, the owner may sell to the purchaser at a less price without liability to the broker. Gamble v. Grether, 108 Mo.App. 340, l. c. 346, 83 S.W. 306, l. c. 307; Meredith v. Martin, 9 S.W.2d 860; Crain v. Miles, 134 S.W. 52, l. c. 55, 154 Mo.App. 338, l. c. 348; Hughes v. Dodd, 146 S.W. 446, l. c. 448. (3) The court's conclusion of law, that plaintiff was the procuring cause of the negotiations which finally resulted in a sale, is not supported by the evidence nor by the court's finding of facts. Abs., pp. 21, 61, 62. (4) The court's finding that plaintiff did not abandon the agency is not supported by the evidence. Abs., pp. 21, 61, 62. (5) A promise, if any, of Jekel, made when plaintiff confessed his inability to sell, that plaintiff would be taken care of and paid a commission, was without consideration and void, and no recovery can be based on it. Greenbaum v. Elliott, 60 Mo. 25; Musick v. Dodson, 76 Mo. 624, l. c. 627; Terry v. Terry, 217 S.W. 842, l. c. 845; 13 C. J. 359.

C. L. Shotwell for respondent.

(1) When a real estate agent interests the purchaser in the property and directs the attention of the owner to him his duties are complete and he is entitled to his commission when the sale is consummated. Real Estate Co. v. Epstein, 157 Mo.App. 101, l. c. 106; Morgan v. Keller, 194 Mo. 663, l. c. 679; McCormack v. Henderson, 100 Mo.App. 647, l. c. 652; Hovey & Brown v. Aaron, 133 Mo.App. 573, l. c. 582; Sallee v. McMurray, 113 Mo.App. 253, l. c. 264; Tyler v. Parr, 52 Mo. 249; Cole v. Crump, 174 Mo.App. 215, l. c. 219. (2) Under the conceded facts in this case the respondent was the procuring cause of said sale and is entitled to recover for his services. Henning v. Real Estate Trust Co., 218 Mo.App. 433, l. c. 438. (3) The sale having been consummated by the vendor the plaintiff was not required to show the ability of the purchaser to buy, but was entitled to his commission when he procured a purchaser, who afterwards bought the property. Sidebotham v. Spengler, 154 Mo.App. 11; Real Estate Co. v. Epstein, supra. (4) The sale direct by the owner to the purchaser procured by the agent does not deprive the agent of his commission. Glade v. Mining Co., 129 Mo.App. 443, l. c. 455; Real Estate Co. v. Epstein, 157 Mo.App. 101; Henderson v. Mace, 64 Mo.App. 393; Wetzel v. Wagoner, 41 Mo.App. 509, l. c. 516. (5) Where the verdict is for the plaintiff the evidence should be viewed by the Appellate Court in its most favorable aspect in support of the verdict. Cunliff v. Hausman, 97 Mo.App. 467; Applegate v. Danciger, 2 S.W.2d 635; Sidebotham v. Spengler, supra.

HOSTETTER, P. J. Becker and McCullen, JJ., concur.

OPINION

HOSTETTER, P. J.

--This suit was begun on the 5th day of March, 1934, in the Circuit Court of St. Louis County, by plaintiff, a real estate broker, against defendants, Jetama Investment Company, a corporation, and A. A. Jekel, its president. It is an action to recover a commission claimed by plaintiff on account of the sale of a piece of real estate belonging to defendant corporation, and located in Kirkwood, St. Louis County, Missouri. The amended petition, on which the case was tried, contained two counts, the first one being based on an express contract and the second one on quantum meruit.

A jury was waived and the case was tried by the court, which found in favor of both defendants on the first count, and in favor of A. A. Jekel on the second count, but against the corporate defendant on said second count in the sum of $ 750.

The corporate defendant being the sole appellant, we will allow A. A. Jekel and the first count in the petition to fade out of the picture.

The second count, in substance, is as follows:

That about March, 1933, defendants employed plaintiff to sell the said real estate and the latter agreed to undertake the job and advertised the same extensively at his own expense and showed it to prospective purchasers and made every effort to find a purchaser, and finally, during the month of July, 1933, did find a purchaser who was able and willing to purchase the property at a price acceptable to defendants, and that as a result of plaintiff's efforts to sell the property, said purchaser so procured by plaintiff did purchase, and defendant, Jetama Investment Company, did sell same to said purchaser for the price and sum of $ 15,000 about December 28, 1933; that plaintiff's said services were reasonably worth $ 750, for which amount judgment was prayed.

The answer was a general denial.

The testimony on behalf of plaintiff tended to support the allegations contained in said second count.

Plaintiff testified in his own behalf substantially as follows:

That Jekel, president of the defendant corporation, in March, 1933, requested him to procure a purchaser for the property; that thereafter he (plaintiff) advertised the property in various St. Louis newspapers and made efforts to sell it for the authorized amount of $ 18,000; that Mr. Tacke, representing the Pevely Dairy Company, called at plaintiff's office in Kirkwood and inquired about some property known as the Straub property; that he told Tacke the price at which it was being held and they both thought it was too high and that Tacke then inquired about other business property on Lindbergh and they both went to see it and Tacke didn't like the location of same; that Tacke then asked him if he had any property farther North and that he then showed him the property in controversy, which was known as the "Pitman property;" that Tacke seemed pleased with this Pitman tract saying: "That appeals to me," and inquired the price it was held at and that he told him $ 18,000; that Tacke told him that he was representing the Pevely Dairy Company, or Mr. Kerckhoff, its president, in buying land; that he himself was not in the real estate business then, but formerly had been; that on leaving Tacke said, in reference to the Pitman tract, "you will hear from me;" that after Tacke left he went to Mr. Jekel's house and told him that he had a prospective purchaser for the Pitman tract and it was the Pevely Dairy Company, and that Mr. Jekel said that he was very glad to hear about it; that about a week thereafter Tacke called him up over the phone and said that he was authorized by Mr. Kerckhoff (president of the Pevely Dairy Company) to offer $ 15,000 for the property and he (witness) responded that he feared the offer would be turned down, that it was a bargain at $ 18,000, and that Tacke said $ 15,000 was all he was authorized to offer; that he (witness) went at once to Jekel's house and told him what had transpired and advised him that if he were in his place he would not accept it and that Jekel said, "No, we won't accept that;" that later, Jekel came to his office and suggested that he make a proposition of $ 15,000 plus commission; that he then said, "Mr. Jekel, I believe you are in too big a hurry with making that proposition. I would wait a while to see what will transpire;" that sometime thereafter he (witness) called up Mr. Mattes, secretary and treasurer of the Jetama Investment Company, and told him that Mr. Jekel had spoken about making that offer and that he had advised him against it, and that Mattes replied, "No, don't do that, I will talk to Mr. Jekel about that; " that he then wrote a letter to Mr. Kerckhoff on the subject and received a reply under date of August 24, 1933, reading as follows:

"St. Louis

"August 24, 1933.

"Mr. P. C. Bopp,

"106 West Adams Avenue,

"Kirkwood, Missouri.

"Dear Mr. Bopp:

"In answer to your letter of the 21st concerning the location in Kirkwood, wish to advise that I shall look over this property at my first opportunity and after seeing same, if I am interested in purchasing it through you will be glad to get in touch with you.

"Very truly yours,

"Pevely Dairy Company

"DCK:AS By D. C. Kerckhoff."

Plaintiff then continued his testimony as follows: "I immediately took the letter and went to Mr. Jekel and showed it to him. Mr. Jekel said, "That looks good, doesn't it?" I said, "Mr. Jekel, it may look good to you, but it doesn't look so good to me. He says if he was interested in buying it through me that he would come out and view the place. Now, that looks on the face of it to me like he didn't want to purchase it through me, but wants to purchase it through somebody else." Mr. Jekel said "Oh, they can't do that, they can't do that. I will see that you are taken care of on that." Mr. Jekel came to my...