Boswell v. Saunders
| Decision Date | 02 November 1949 |
| Docket Number | 6862 |
| Parties | BOSWELL v. SAUNDERS |
| Court | Missouri Court of Appeals |
Not to be published in State Reports.
Paul J Dillard, Lebanon, for appellant.
Bradshaw & Fields, Lebanon, for respondent.
McDOWELL
This action was filed in the Circuit Court of Laclede County Missouri, August 28, 1948. Plaintiff seeks to recover $ 2,875, with interest and costs for commission alleged to be due from the defendant for selling 250 shares of stock in the Laclede Metal Products, Inc. The case was tried to a jury resulting in a verdict for the plaintiff in the sum of $ 2,875, plus interest in the amount of $ 200. From an order overruling a motion for new trial the defendant duly appeals to this court.
Plaintiff's petition states that J. E. Boswell and wife owned 250 shares of common stock in the Laclede Metal Products, Inc.; that on December 1, 1947, J. E. Boswell employed plaintiff to sell said stock for a sum of $ 57,500, and agreed to pay him a 5% commission for his services; that on the ___ day of January 1948, through the efforts of plaintiff, J. E. Boswell sold said stock to Pieper-Lillard, Inc. for the sum of $ 57,500. Plaintiff states that on January 7, 1948, he demanded of the defendant his commission of 5% for the sale of said stock and that defendant refused to pay same; that there is due plaintiff the sum of $ 2,875.
The defendant, in his first amended answer, states that he advised plaintiff that he and his wife owned 250 shares of stock mentioned, by the entirety; that he would consult his wife, and if she agreed, he would sell their interest for cash in the sum of $ 57,500. The answer states that defendant had been negotiating with Pieper-Lillard, Inc. for the sale of said stock prior to any conversation with plaintiff, and that such sale was made by the defendant without any assistance from plaintiff. The answer admits that plaintiff demanded the commission, as stated in his petition, but denies that he owes any part thereof. He pleads that as a compromise to prevent litigation he offered plaintiff $ 676.22, in payment of alleged expenses of plaintiff brought about through defendant's original offer made to plaintiff if the property was sold as a cash sale. The answer further pleaded that plaintiff cannot recover because he is not a licensed salesman or broker.
Appellant relies upon two grounds of error assigned in his brief for reversal: first, that the verdict is against the evidence, against the weight of the evidence and against the law under the evidence; and, second, that the court erred in submitting plaintiff's Instruction No. 2, over the defendant's objection; that this instruction did not require the jury to find that plaintiff was the procuring cause of the sale. It is under the last assignment of error that appellant bases his sole contention for reversal.
We here state such facts as we believe are necessary for the proper determination of the issues raised. The Laclede Metal Products, Inc., prior to December 1, 1947, was a corporation doing business in Laclede County, Missouri. The principal work of this corporation was the manufacture of anchors for Pieper-Lillard, Inc., a corporation of St. Louis, Missouri. J. E. Boswell and wife owned 250 shares of the stock, or 45% thereof, in the Laclede Metal Products, Inc. George Carr owned 45% of the stock and the plaintiff, Thomas D. Saunders, owned 10% of the stock. The ability of the Laclede Metal Products, Inc. to carry out its contracts depended upon the supply of steel, which, due to war conditions, became very scarce. The defendant testified that due to the steel shortage and financial difficulties the company was beginning to get in bad condition. He testified that 'the future didn't look a bit good.' This question was asked the defendant: 'Q. Did you have occasion during that particular time to discuss with Tom Saunders the sale of your stock? A. Well, after a trip to St. Louis when we were seeking bank loans that were turned down, it looked like we was going to have to do something, so Tom came back from St. Louis, along in the fall, I guess the early part of the fall, and he was telling us about a party in Alabama, I believe, that had quite a good source of steel and, incidently, steel was one of our big problems too, and I told Tom, I said, 'Tom, now, there is the steel and here is Pieper-Lillard, they have got a good product here, they are making a good profit on it, we are not doing any good.' I said, 'now you can sell that stock to Pieper-Lillard, if you do I will give you 5% of what I make on the deal." Defendant testified that this conversation was made at his home one night early in the fall. The facts show that the defendant wrote Pieper-Lillard, Inc. near the end of November trying to sell this particular stock and he states that the letter was written after the proposition made to the plaintiff offering to employ him to sell the stock, but Pieper-Lillard refused to buy the stock. Shortly after defendant had written the letter trying to sell his stock Mr. Lillard came to the office of the Laclede Metal Products, Inc. to re-negotiate their contract with the company and in that meeting Mr. Carr, Mr. Lillard, plaintiff and defendant were present. Defendant asked Mr. Lillard why he didn't buy his stock in the company and offered to sell it for $ 57,500. Lillard stated that he was interested and would take the matter up with his directors. Now the defendant testified that a day or two after he had offered to sell his stock plaintiff asked him if the 5% deal was still on and that he told plaintiff that he had missed the boat, but that if he would get to work on the deal and put it across he would pay him 3%. Defendant testified that the original deal was 5% of the net profits and the 3% offered was also of the net profits. He testified that he actually did sell the stock for $ 57,500 and at the time of the sale he gave Mr. Saunders a check for $ 676.22.
The plaintiff testified that around Thanksgiving, 1947, George Carr told him that defendant wanted to see him; that in pursuance to said information he went to the home of defendant, who told him he wanted to sell his stock for $ 60,000, and that he wanted plaintiff to promote the sale. The commission defendant offered was 5% and plaintiff testified that there was nothing said about 5% of the net profits. Plaintiff testified as follows:
Plaintiff testified that at said time and place they also discussed a company in Alabama. He stated that the next day he had to go to St. Joseph, Missouri to the funeral of his Aunt and that he was away for possibly a week; that after he returned to Lebanon he found that defendant had written a letter to Pieper-Lillard and had received an answer that they were not interested in the stock. Plaintiff testified that he then again discussed the sale of the stock with defendant; that a week or so later Mr. Lillard came to Lebanon, which was about two days after he returned from the funeral of his Aunt. The purpose of Mr. Lillard's visit to Lebanon was to re-negotiate a contract for anchors. Plaintiff testified that while in the office with Mr. Carr, Mr. Boswell, Mr. Lillard and himself Boswell proposed to Lillard that it would be a good idea for him to buy Boswell's stock and that Lillard said he did not have that kind of money for investment. Plaintiff testified that he went on trying to sell the Boswell stock after the defendant had been turned down twice himself; that on the day Mr. Boswell proposed selling his stock to Lillard, plaintiff, Mr. Carr and Mr. Lillard had lunch together at the Nelson Hotel; that he there discussed the merits of the company with Mr. Lillard in order to interest him in this stock. Boswell was not present at this time. Plaintiff testified that at that meeting Lillard told him that he would ask Boswell what he would take for the stock and go back to St. Louis and talk it over with his associates and let him know later. Plaintiff stated that he was present later when Boswell, the defendant, offered to sell the stock for $ 57,500; that there was nothing said at that time about take it or leave it. Plaintiff further testified that Lillard called him after he went back to St Louis and told him they were interested in the Boswell stock, but they were not interested in having a minority of the stock in the company; that they would be interested only if he could work up something whereby they would be able to dominate the company or direct its policy. Plaintiff stated that he...
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