Bowdern v. Rowland

• Decision Date: 03 December 1929
• Docket Number: No. 20740.,20740.
• Citation: 21 S.W.2d 899
• Parties: BOWDERN v. ROWLAND et al.
• Court: Missouri Court of Appeals

21 S.W.2d 899

BOWDERN v. ROWLAND et al.

No. 20740.

St. Louis Court of Appeals. Missouri.

December 3, 1929.

Rehearing Denied December 17, 1929.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

"Not to be officially published."

Action by Thomas Bowdern against C. K. Rowland and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Carter, Jones & Turney, of St. Louis, for appellants.

Foristel, Mudd, Blair & Habenicht, of St. Louis, for respondent.

HAID, P. J.

Plaintiff sued to recover a commission of 5 per cent. on the sale of a water and light company at Ste. Genevieve, Mo., which he alleged it was agreed he would be paid if he procured a purchaser for the property. The jury returned a verdict in his favor for $4,850, plus $1,164 interest, or a total of $6,014. From the judgment upon this verdict defendants appeal.

Defendants' first contention here is that the trial court erred in not sustaining the joint demurrer of the two defendants as well as the individual demurrer of defendant Rowland, on the ground that there was no joint agreement by the defendants to pay the commission sued for.

In view of this contention, it will be unnecessary to recite any of the facts except such as have reference to the question of whether there was evidence of a joint agreement. In the consideration of the correctness of the trial court's ruling we are bound, as in the consideration of demurrers to the evidence in other cases, to regard the testimony for plaintiff as true, so long as it is not impossible as opposed to the physics of the case or entirely beyond reason, and the defendant's evidence must be taken as untrue where it is contradicted by that for plaintiff, Crowley v. St. L. S. F. Ry. Co. (Mo. App.) 18 S.W. (2d) loc. cit. 543; Erxleben v. Kaster (Mo. App.) 21 S.W.(2d) 195, decided by this court November 5, 1929; and plaintiff must be given the benefit of the reasonable inferences of fact on all the proof, Maiden v. Fisher (Mo. App.) 17 S.W.(2d) loc. cit. 565, and cases cited.

The plaintiff testified: That at the time of the alleged contract sued upon he was a salesman for the Commercial Electrical Supply Company. That he called at the office of the Home Water & Light Company of Ste. Genevieve, Mo., of which the two defendants owned substantially all of the stock. That defendant Spradling informed him that the company had given an option and had a deal pending with a man in Iowa, but had received word that such party was not interested in the purchase of the property. That Mr. Spradling further informed him that the company had obligations of $10,000 to meet in the near future, that the plant needed more capacity, that neither he nor Mr. Rowland were then in a position to meet this, and would have to make a quick sale of the property or lose the amount they had invested to purchase it. That he informed plaintiff that if plaintiff would, he could help them out and sell the property for them. That plaintiff informed Mr. Spradling that he would be glad to help out but would have to charge a commission, and Mr. Spradling replied that that was all right and inquired whether plaintiff could sell it quickly. That plaintiff informed Mr. Spradling he would have to charge 5 per cent. commission of whatever price the property sold for, and Mr. Spradling informed him they would be willing to pay more than 5 per cent. of the sale price of the property, and plaintiff stated he did not expect more than 5 per cent., to which Mr. Spradling replied, "We will be glad to pay you that." That upon inquiry as to how soon he could do this, plaintiff informed Mr. Spradling that he would do so in a week or so, but upon Mr. Spradling's insistence he immediately went to the telephone and called up a Mr. Lowe at Blytheville, Ark., and informed the latter that the Home Water & Light Company at Ste. Genevieve, Mo., could be purchased and asked him if he would be interested in buying the property. That he informed Mr. Lowe that he knew the property, the amount of business that the company was doing, described the electric light plant and the apparatus, the size of the town, and expressed the view that it would be a good purchase if he saw fit to make it. That he invited Mr. Lowe to meet him in St. Louis at his earliest convenience and he would tell him more about the property, and a few days thereafter Mr. Lowe did meet him at the Statler Hotel, and a Mr. Solari was present when plaintiff met Mr. Lowe. That Mr. Spradling, not having heard from Mr. Lowe, called up the plaintiff and asked if he had heard anything from Mr. Lowe, and upon being informed that plaintiff had not heard from him, Mr. Spradling requested plaintiff to "get after him." That Mr. Spradling on this occasion informed him that Mr. Lowe had visited the plant and Mr. Spradling felt Mr. Lowe was impressed with the property and might buy it, but Mr. Spradling thought the only thing needed was to get back of Mr. Lowe. That plaintiff then arranged to and did see Mr. Lowe, and shortly thereafter was informed by Mr. Spradling that the deal was made to sell the property to Mr. Lowe. That two weeks later he called Mr. Spradling and asked whether he would send him a check for his commission, and Mr. Spradling said he would do so as soon as he got the thing cleaned up with Mr. Rowland. That he received a check for $150 and later on called Mr. Spradling on two occasions and was informed that Mr. Spradling would see Mr. Rowland and get it fixed up and send a check for plaintiff's full commission. The check not having come, he went to Ste. Genevieve to see Mr. Spradling, who informed him that the check had not been sent due to the fact that Mr. Spradling had been very busy winding up the company's affairs and he would see Mr. Rowland and arrange to get plaintiff's commission and send up that check. That he met Mr. Rowland and Mr. Spradling at Conway, Mo., and en route by train to Marshfield he asked Mr. Rowland, "Why don't you pay me the money you owe me for selling your property at Ste. Genevieve?" And Mr. Rowland replied, "Well, now, that deal is between Harry and you, why don't you get Harry to pay you that money." That plaintiff then said, "Mr. Rowland, didn't you authorize Mr. Spradling to sell the property?" To which Mr. Rowland replied, "I certainly did or it would never have been sold." Plaintiff then said, "You knew Spradling was dealing with me and arranged to pay me 5 per cent. commission if I would make a quick sale at Ste. Genevieve?" To which Mr. Rowland replied, "I certainly knew it or it would not have been sold — it could not have been unless I agreed to it." Plaintiff then inquired, "Why don't you pay?" To which Mr. Rowland replied: "I am leaving that to Harry and he can work it out. You deal with Harry on it." That he afterwards asked Mr. Rowland again for the money, and the latter said: "Well, we will make that up for you in some other way. We are buying the property at Marshfield, Missouri; you will make enough on the property. You ought to be satisfied on the profit on this property." To which plaintiff replied, "If you insist I won't sell you the Marshfield Light & Power Company if you say that deal in Ste. Genevieve has anything to do with it, or will compensate what I did for you." That Mr. Rowland then replied, "Forget the Ste. Genevieve deal and go on with this thing."

It is true that both Mr. Spradling and Mr. Rowland denied the authority of Mr. Spradling to bind the defendant Rowland to pay the commission, but in the evidence of Mr. Spradling he states that Mr. Rowland was never contrary to what he did; that he wanted to sell his stock and get rid of it; that Mr. Rowland had authorized him to sell his...