Boyd v. Margolin

• Decision Date: 11 December 1967
• Docket Number: No. 2,No. 52505,52505,2
• Citation: 421 S.W.2d 761
• Parties: George F. BOYD, Plaintiff-Appellant, v. A. E. MARGOLIN and James Gary Knaus, Co-Executors of the Estate of Ezra D. Knaus, Deceased, Defendants-Appellants, A. E. Margolin and James Gary Knaus, Co-Executors of the Estate of Ezra D. Knaus, Deceased, Defendants-Respondents
• Court: Missouri Supreme Court

Page 761

421 S.W.2d 761

George F. BOYD, Plaintiff-Appellant, v. A. E. MARGOLIN and James Gary Knaus, Co-Executors of the

Estate of Ezra D. Knaus, Deceased, Defendants-Appellants,

A. E. Margolin and James Gary Knaus, Co-Executors of the

Estate of Ezra D. Knaus, Deceased, Defendants-Respondents.

No. 52505.

Supreme Court of Missouri, Division No. 2.

Dec. 11, 1967.

Albert Thomson, Kansas City, for plaintiff-appellant, George F. Boyd.

Linde, Thomson, VanDyke, Fairchild & Langworthy, Kansas City, of counsel.

Charles W. Medley, Robert A. Goodman, Margolin & Kirwan, Kansas City, for defendant-appellant.

PRITCHARD, Commissioner.

Plaintiff recovered judgment for $10,000 for broker's fee in the sale of the Knaus Truck Lines, Inc. He contends that he was entitled to a directed verdict of $36,000 upon his contract made by Ezra D. Knaus (deceased since the time of trial), being 5% commission upon the sale of the Knaus Company to Consolidated Freightways, Inc., for 60,000 of its shares, said to be of a value of $720,000, the allegations for which were embodied in Count I of the petition. Defendants counter plaintiff's contentions and say that he has failed to prove that he in entitled to $36,000 on the alleged express contract as a matter of law, and further by cross-appeal that he is not entitled to the $10,000 verdict and judgment on the theory of an implied contract (Count II of the petition).

Plaintiff, Boyd, now of Carthage, Missouri, has been in the trucking business since the early 1930's. He started with one truck, built the company up for 20-odd years, then sold it to Knaus Truck Lines, Inc. in 1955. He then worked for a time for Knaus as a consultant and advisor concerning matters involved with its acquisition of Boyd Truck Lines. Before his sale to Knaus, he sold the England Brothers Truck Lines to A. E. Gallagher. Presently, Boyd is president and general manager of Tri-State Motor Transit Company. By reason of his long experience, Boyd was familiar with truck lines throughout the United States.

Boyd's version of the facts are that in May of 1957 he had a conversation with Mr. Knaus who told him he might be interested in selling his truck line. Mr. Knaus owned the biggest part of the capital stock of Knaus Truck Lines, Inc., and of the Transport Equipment Company. Boyd told Mr. Knaus he thought he could find him a buyer, and Mr. Knaus gave him a letter of authorization (which he personally typed) to represent him in an effort to sell his truck line, Plaintiff's Exhibit No. 1(A):

'George F Boyd.

'This is your authority, to off all the stock in Knaus Truck lines for Sale. to your prospect, or prospects, For the Net Sum of $1,000,000.00 one Million Dollars. I agree to pay 5% Commission to you if you are able to effect a sale to a party suitable to me, I require a minimin, of 30% down, and terms to be negotiated for the balance,

'I agree to make this offer for one week only, as I have other committments, that I cannot hold up longer than that length of time, That would effet the price, I agreed to sell for at this time, which I have discussed with you on the phone,

Knaus Truck Lines Inc.

/s/ Ezra Knaus. pres.'

Afterwards, Boyd told Mr. Knaus that he was going to Menlo Park, California, to see Consolidated Freightways and that he should have financial information to take with him to show the present financial condition of the company; also a copy of his operating authorities and routes, 'just general information that a prospective purchaser would be interested in seeing.' Mr. Knaus also supplied Boyd with Plaintiff's Exhibit 3, dated June 19, 1957, a letter reciting that enclosures were made of (1) a certified audit of Knaus Truck Lines, Inc. (as of 12/31/56); (2) a certified audit of Transport Equipment Co. (as of 12/31/56); (3) a list of equipment (over-the-road and city); (4) note schedules of both companies; and (5) blueprint of the Kansas City property showing terminal and parking areas. Boyd then called Mr. Kassebaum, vice president of Consolidated, and made an appointment with him. He purchased an airplane ticket, and conferred with Mr. Kassebaum who requested further information to be supplied on one of Consolidated's forms, which Mr. Kassebaum gave to Boyd on June 24 or 25, 1957. Boyd conferred with Mr. Knaus as to Consolidated's requested information. Mr. Knaus told Boyd that he would make the information available to him through Mr. Troupe, his accountant, which was done. Then Mr. Knaus gave Boyd a copy of Plaintiff's Exhibit 1, upon which Mr. Knaus wrote at the bottom: 'this agreement is extended 1 week from today till July-5th. and is understood to Include transport Equip Co--on sale June-27 E. K. (signed) Ezra Knaus.' This was in response to Boyd's objection that he could not sell a truck line in a week, to which Mr. Knaus replied that he wanted to be assured that Boyd had an interested party before he made any extensions in the agreement. Boyd then placed a call to Mr. Kassebaum and introduced him to Mr. Knaus over the telephone, they talked, and Mr. Knaus said he was convinced that Consolidated was interested, that they would go ahead and give the additional information. Mr. Knaus caused to be prepared, gave to Boyd who passed it on to Consolidated, Plaintiff's Exhibit 6, which is a detailed account of the assets of Knaus Truck Lines and Transport Equipment Company. Listed are the book values (total $452,000) and the actual values (total $1,182,110).

After June of 1957, Boyd made several telephone calls, and in September, 1957, Mr. Kassebaum and Mr. Knaus met at the latter's office with Boyd present. Mr. Knaus showed Mr. Kassebaum the property and talked to him. Mr. Knaus said that he preferred to sell to an investor and that he was not right sure that he was going to make a deal with Consolidated. Boyd made efforts to secure an investor who might be interested in buying the line, but was unsuccessful. Boyd testified he also contacted an operator-trucker, Mr. Harvey Jones, in Springdale, Arkansas, about a sale of the truck line. Mr. Kassebaum returned in October, 1957, and Boyd and dinner with him and his lawyer. Mr. Knaus later met with Mr. Kassebaum, but requested that Boyd not be present, saying that he would handle the negotiations himself from that time on. Mr. Knaus never at any time said he was not interested in Consolidated as a purchaser, and in December, 1957, he sold to Consolidated. Although he requested it, no commission or compensation was paid to Boyd for what he had done. The Interstate Commerce Commission approved the purchase by Consolidated of the Knaus Truck Line in October, 1961.

Edward B. Watkowski, Jr., testified that the over-the-counter bid and asked prices of Consolidated's shares of stock on January 3, 1958, were 12 3/4 and 13 7/8, according to the quotations of Blyth & Company, Inc., a general brokerage firm.

Lester Earl Kassebaum, Portland, Oregon, was employed by Consolidated. He testified by deposition that sometime between 1956 and 1960 he learned that the Knaus Truck Line might be for sale when he was approached by Boyd. He told Boyd that Consolidated would not pay a finder's fee on the purchase. He would not go into anything but a 'stock deal.' He did not talk to Mr. Knaus prior to Boyd's contact. He made two trips to Kansas City in connection with the Knaus Truck Line purchase, and he made a final agreement for 60,000 shares of Consolidated stock in exchange for the Knaus Truck Line. Boyd did not tell him that his authority in finding a buyer was limited to one who was not in the trucking industry at the time. On his first visit to Kansas City he did not have a joint meeting with Boyd and Mr. Knaus. Mr. Knaus first rejected a Consolidated stock offer, but later he agreed to accept 60,000 shares, and the agreement to sell was made about December 15, 1957.

As admissions against interest, portions of Mr. Knaus' deposition were read: He first talked with Boyd about the sale of knaus Truck Lines in April or May, 1957. In his best judgment, the value of Consolidated's stock in December, 1957, was right around twelve dollars. Boyd first mentioned to him the company of Consolidated Freightways probably in July, 1957, but never mentioned selling direct to Consolidated. Mr. Knaus first talked to Consolidated about a stock exchange in September, 1957. In December, 1957, if Boyd had found an individual (a nonoperator--an 'operator' being defined in the instructions as meaning a truck line registered with the Interstate Commerce Commission), he had authority to go ahead and sell the truck line at the price Mr. Knaus had given him. He finally negotiated with Consolidated for 60,000 shares of stock in the last week of December, 1957. Further admissions elicited at trial from Mr. Knaus are: He prepared, typed and signed Plaintiff's Exhibits 1 and 2; there was no other written agreement regarding a commission between him and Boyd except those documents; Boyd brought him a contract for a sale to an operator on or about July 18, 1957; that in December, 1957, he made a deal with Consolidated whereby the Knaus Truck Lines stock was exchanged for Consolidated Stock worth $720,000; Plaintiff's Exhibits 1 and 2 did not contain either the word 'operator' or 'non-operator'; in September, 1957, he met with Kassebaum, and that he previously testified by deposition that Consolidated wanted information 'to see if they would be interested in making any kind of a stock exchange with us'; he again met with Consolidated representatives in October, 1957, and it offered 65,000 shares of its stock for Knaus Truck Lines on October 4; until Mr Knaus actually sold the line so far as he knew Boyd probably was still working on the sale; in August, 1957, Knaus Truck Lines' current liabilities exceeded its current assets; and he did not know any Consolidated personnel until he commenced the dealings which resulted in the exchange of stock.

The evidence of Mr. Knaus was that Mr. Harvey...