Bowman v. Rahmoeller

• Decision Date: 20 December 1932
• Docket Number: No. 30724.,30724.
• Citation: 55 S.W.2d 453
• Parties: SAMUEL BOWMAN v. F.W. RAHMOELLER, Appellant.
• Court: Missouri Supreme Court

55 S.W.2d 453

SAMUEL BOWMAN v. F.W. RAHMOELLER, Appellant.

No. 30724.

Supreme Court of Missouri.

Division One, December 20, 1932.

Appeal from Circuit Court of City of St. Louis. — Hon. O'Neil Ryan, Judge.

REVERSED AND REMANDED.

Bryan, Williams, Cave & McPheeters for appellant.

(1) The court erred in refusing defendant's instruction in the nature of a demurrer to the evidence, at the close of the whole case, for the reason that all of the evidence showed that plaintiff's authority to offer the building for lease had expired prior to June 29, 1928, and that W.M. Smith of the Woolworth Company (and not plaintiff Bowman) was the procuring cause of defendant effecting a lease with the W.T. Grant Company. La Force v. Washington University, 106 Mo. App. 517; Good v. Robinson, 194 Mo. App. 453; Sibald v. The Bethlehem Iron Co., 83 N.Y. 382; Stedman & Bowman v. Richardson, 100 Ky. 79; Fairchild v. Cunningham, 84 Minn. 521; Geo. B. Loving Co. v. Hesperian Cattle Co., 176 Mo. 348. (2) The court erred in giving Instruction 1 offered by the plaintiff and modified by the court and then given by the court as modified. Geo. B. Loving Co. v. Hesperian Cattle Co., 176 Mo. 330; La Force v. Washington University, 106 Mo. App. 517; Fairchild v. Cunningham, 84 Minn. 521. (3) The court erred in refusing to give Instruction 4 as offered by defendant, and erred in modifying said instruction and then giving said instruction as modified by the court. Saunders v. Hackley & Hume Co., 208 S.W. 72; Geo. B. Loving Co. v. Hesperian Cattle Co., 176 Mo. 330; Page & Austin v. Griffin, 71 Mo. App. 529; La Force v. Washington University, 106 Mo. App. 517; Sibald v. The Bethlehem Iron Co., 83 N.Y. 382. (4) The court erred in refusing to give defendant's refused Instruction 2 of 3/3/30, which instructed the jury that "there is no evidence in this case of a conspiracy between Charles H. Sanford, the W.T. Grant Company and the defendant F.W. Rahmoeller, or either of them, to cheat and defraud the plaintiff out of any commission," etc. Walsh v. Walsh, 285 Mo. 205; Woosley v. Wells, 281 S.W. 700; 12 C.J. 639, sec. 234; Latham v. Hosch, 207 Mo. App. 388.

Randolph Laughlin for respondent.

(1) If the owner choose to deal with the broker's customer at a lower price or upon other terms, while the broker's agency remains unrevoked, and he is still working with his customer at the price and upon the terms named to him, the owner will be liable to the broker for a commission upon a sale or lease so consummated by him with the broker's customer. Jennings v. Overhold, 186 Mo. App. 505, 172 S.W. 451; Good v. Robinson, 194 Mo. App. 456; Wetzell v. Wagoner, 41 Mo. App. 509; Larow v. Bozarth, 68 Mo. App. 407; Grether v. McCormick, 79 Mo. App. 325; Nichols v. Whitacre, 112 Mo. App. 692; Hovey v. Asron, 133 Mo. App. 573; Lane v. Cunningham, 171 Mo. App. 17. (2) The answer is a general denial. It does not confess the contract and seek to avoid it by pleading that it had ceased to be in force by expiration, limitation or revocation. A plea of confession and avoidance is the only way in which the issue sought to be injected by the appellant's point 2 could enter the case. The issue not being in the case, it would have been erroneous to instruct on it. Hoyt v. Buder, 6 S.W. (2d) 947, 318 Mo. 1155; Yawitz v. Novak, 286 S.W. 66; Telaneus v. Simpson, 12 S.W. (2d) 920; Benzal v. Anishanzlin, 297 S.W. 180; Kessler v. West Mo. Power Co., 283 S.W. 705, 221 Mo. App. 644; State ex rel. Blick v. Mueller, 278 S.W. 1094. (a) Notwithstanding the law as declared in the above cases, the court, in defendant's Instruction 2, told the jury that before they could find for the plaintiff they must find that Grant was induced to lease the building "at a time when the plaintiff's authority to offer said building was in force." Instructions ignoring defense, presented by instructions given at defendant's request, held no error. Straub v. Laclede Gas Light Co., 287 S.W. 1061; Rodgers v. Schroeder, 287 S.W. 861, 220 Mo. App. 575; Lowry v. Fidelity, 272 S.W. 79, 219 Mo. App. 121; Kurth v. Morgan, 277 S.W. 50. (b) Moreover, there was no evidence that "plaintiff's authority to offer said building" was not in force at the time the lease was made. Where the question of authority is not disputed by the evidence, it is proper for the instructions to ignore it. Bridge v. Welda State Bank, 292 S.W. 1079. (c) There is ample evidence to support the finding that Rahmoeller and Grant closed the lease behind the back of the plaintiff, and to avoid paying a commission to plaintiff, and that plaintiff's efforts were the procuring cause — that is, the direct and proximate cause — of Grant becoming the lessee. (3) There was evidence that plaintiff's option or exclusive agency contract had expired on May 5, but there was no evidence that his general authority had either expired or been revoked. Instructions must be within the purview both of the pleadings and the evidence. Telaneus v. Simpson, 12 S.W. (2d) 920; Benzel v. Anishanzlin, 297 S.W. 180; Kessler v. West Mo. Power Co., 283 S.W. 705, 221 Mo. App. 644; State ex rel. Blick v. Mueller, 278 S.W. 1094. (4) The plaintiff may either prove a conspiracy by proving the illegal or immoral contract or by proving the acts from which the illegal or immoral contract may be inferred. Tucker v. Hyatt, 151 Ind. 232; Patch v. Protective Lodge, 77 Vt. 294; Spiess v. People, 122 Ill. 7; 5 R.C.L. 1103, 1104, sec. 53; McManus v. Lee, 43 Mo. 206; State v. Roberts, 201 Mo. 729; State v. Fields, 234 Mo. 623; Dietrich v. Cape Brewery Co., 315 Mo. 507. (a) It rarely happens that there are bystanders present at the making of a conspiracy. Therefore the usual practice is to prove a conspiracy by proving concerted action, from which the existence of the conspiracy may be inferred. This is called proving the conspiracy by circumstantial evidence. Dietrich v. Cape Brewery Co., 315 Mo. 507, 286 S.W. 38; Belt v. Belt, 288 S.W. 100; Burton v. Maupin, 281 S.W. 83. (b) In this case respondent's circumstantial evidence of a conspiracy was supplemented by direct evidence. (c) The jury found that Mr. Bowman was the procuring cause of the lease and that by his labors he had fairly earned his commission. The agreement stated in Mr. Rahmoeller's letter of November 26 (Plaintiff Ex. 89) was in plain terms and by necessary implication an agreement between Rahmoeller and the Grant Company to stand together in an effort to deprive Mr. Bowman of his just dues. Such an agreement was, of course, illegal and fraudulent, and fulfills the accepted definition of a conspiracy. Belt v. Belt, 288 S.W. 100; McCarty v. Henker, 4 S.W. (2d) 1088; Dietrich v. Cape Brewery Co., 286 S.W. 38, 315 Mo. 507, and authorities, supra. (5) Failure to except to the verdict precludes the right of appeal. Gann v. Railroad, 6 S.W. (2d) 46.

HYDE, C.

This is a suit by a real estate broker for a commission, for negotiating a 30-year lease of a three-story building in the Wellston district of St. Louis. In 1927 defendant was the owner of this building, which was occupied by the Rahmoeller-Flint House Furnishing Company, a corporation operating a furniture store, in which defendant was one of the principal stockholders. Defendant also owned other business property, adjoining this building, which was leased by the Woolworth Company for a five and ten-cent store. The Furniture Company did not have a lease on defendant's building but occupied it on a month to month basis, expecting to give it up whenever defendant could rent it for more than their business justified paying.

In December, 1927, plaintiff wrote defendant, who was in Florida, asking him if he "would entertain a proposition to make a 30-year lease ... to a very responsible concern which has a capital of not less than ten million dollars." Defendant answered requesting plaintiff to get into communication with Mr. Flint, manager of the Furniture Store. Defendant also wrote Flint to find out who the tenant was and to submit a proposition for a 30-year lease at a rental of $25,000 per year for the first ten years, $30,000 for the next ten years and $35,000 for the remaining ten years, in addition to the taxes and insurance. Plaintiff met Flint and disclosed to him that his prospect was the W.T. Grant Company, a chain store corporation specializing in merchandise selling from twenty-five cents to one dollar. Plaintiff had been in touch with this company for some time trying to interest them in St. Louis locations. Both plaintiff and Flint wrote defendant on December 29, 1927, about their conference. Plaintiff wrote asking that he might be authorized to submit the proposition mentioned by Mr. Flint which, in addition to the amounts specified by plaintiff to Flint, required the payment of a bonus to the furniture company for giving possession and for improvements made by them on the building. Plaintiff closed his letter to defendant saying: "I assume, of course, that if I negotiate a satisfactory lease to you that the matter of commission will be taken care of in the usual manner." Flint wrote defendant that plaintiff's prospect was the Grant Company and that plaintiff would submit defendant's proposition to them with the furniture company's bonus added.

Plaintiff did submit the proposition to Mr. Sanford of the real estate department of the Grant Company, but he answered that they considered the price "staggering." Plaintiff wrote defendant asking him to reduce the price and also had other conversations with Flint about it, but defendant refused to make a better offer. Defendant also wrote plaintiff asking him to attempt to negotiate a sale to his prospect instead of a lease. Plaintiff continued to write to Sanford, whom he had met in 1927 at the Grant Company's real estate office in New York City, asking him to visit St. Louis and see the property. Sanford promised, in several letters, to come to St. Louis and to notify plaintiff in advance of his arrival. Plaintiff...