Brinkmann Realty Co. v. Deidesheimer

• Decision Date: 15 April 1947
• Docket Number: No. 27156.,27156.
• Citation: 201 S.W.2d 503
• Parties: BRINKMANN REALTY CO. v. DEIDESHEIMER et al.
• Court: Missouri Court of Appeals

201 S.W.2d 503

BRINKMANN REALTY CO. v. DEIDESHEIMER et al.

No. 27156.

St. Louis Court of Appeals. Missouri.

April 15, 1947.

Rehearing Denied May 16, 1947.

Appeal from St. Louis Circuit Court; F. E. Williams, Judge.

"Not to be reported in State Reports."

Suit by Brinkmann Realty Company against Otto Deidesheimer and another for a real estate commission claimed to have been earned under a special contract. From a judgment for plaintiff, the defendants appeal.

Affirmed.

J. E. Patton, of St. Louis, for appellants.

Alexander & Robertson, George Eigel and John A. Eigel, all of St. Louis, for respondent.

HUGHES, Judge.

This is a suit for a real estate commission claimed to have been earned under a special contract. Arthur G. Maier and Matilda Maier, his wife, were desirous of purchasing the home of Otto Deidesheimer and Bertha Deidesheimer, known as 6605 Oleatha Avenue, St. Louis, Missouri. The Maiers took the matter up with Charles W Brinkmann, Jr., President of the Brinkmann Realty Company, a corporation engaged in the real estate business, who sometime prior to May 25, 1943, took them to the home of Mr. and Mrs. Deidesheimer to look over the property. At that visit no negotiations were had, but under date of May 25, 1943, Mr. Brinkmann prepared in triplicate by filling out printed forms of what was headed an "Earnest Money Receipt," and which was a contract for the purchase of the Deidesheimer home by the Maiers for $17,000, with a down payment of $200, and contained an agreement by the Deidesheimers to pay the Brinkmann Company a commission as provided under the rules of the St. Louis Real Estate Exchange, which would be 5% of the sale price; the sale was to be closed on or before June 30, 1943. This contract, to which he had procured the signatures of Arthur Maier and Matilda Maier, was submitted by Brinkmann to the Deidesheimers, who refused to sign it, and informed Brinkmann that they would not sell the place for less than $18,000, which would net them $17,100 after paying the real estate commission therein provided. After some talk Mr. Brinkmann offered to reduce the commission to a flat $500 if the Deidesheimers would sell for $17,500, which would net them $17,000, to which they agreed. Thereupon Brinkmann by interlineation changed the sale price to be paid from $17,000 to $17,500 in two copies of the contract and changed the commission clause to $500 in the copy he was to retain, and inserted a clause granting the privilege to Mr. Deidesheimer to occupy the home until July 31, 1943, without rent, and then crossed out the signatures of Arthur Maier and Matilda Maier, and thereupon the Deidesheimers signed the two copies of the contract, and Mr. Brinkmann took them back to secure the signatures of Arthur Maier and Matilda Maier to the altered contract, if they were willing to agree to the changed terms. Up to this time there is no real dispute as to the facts but from then on the facts are very much disputed.

Mr. Brinkmann says that when he next saw Mr. Maier that Mrs. Maier was out of the city but the terms of the contract met with the approval of Arthur Maier who wrote on the face of the contract "OK. Arthur G. Maier," and signed the changed contract, and then he, Brinkmann, took the contract back to the Deidesheimers, together with a check for $200 signed by Arthur Maier and payable to Charles W. Brinkmann, Jr., and endorsed by Charles W. Brinkmann, Jr., and at that time he called the attention of the Deidesheimers to the fact that Arthur Maier alone had signed it, and that Mrs. Maier was not available to sign it with her husband, and that Mr. Deidesheimer said that would be all right, it was an all cash proposition and it wouldn't make any difference. Thereupon Brinkmann delivered the $200 check and a copy of the sale contract to the Deidesheimers, and thereafter took the Deidesheimers to look at a home in Affton on Bonnie Avenue, with a view to renting it when they vacated the home they were selling. The owner of the property in Affton could not give a lease for a year's time so that matter ended there.

The version of Mr. and Mrs. Deidesheimer, as disclosed by their testimony, is that when Brinkmann returned the contract to them after the alterations had been made and after it had been approved and signed by Arthur Maier, he handed it to them folded and said, "They have accepted," and he handed the $200 check to Mr. Deidesheimer and said, "Here, Mr. Deidesheimer, is your earnest money"; that Mr. Deidesheimer looked at the check and said, "Why, this is made out to you, Mr. Brinkmann," and Brinkmann said, "Well, that is all right. I want you to have it"; that Mr. Deidesheimer took the check, and they started conversing about the place Mr. Brinkmann was to show them in Affton. That Mr. Deidesheimer gave the folded contract and the $200 check to Mrs. Deidesheimer who placed it in a dresser drawer; that they wanted to get rid of their home and thought everything was O.K.; that the folded contract and check got caught and lodged behind the dresser drawer, where it was found some five or six days later, when for the first time they discovered that it was O.K.'ed by Arthur Maier only, and not by Matilda Maier; that about three days after finding the contract they consulted with an attorney, and thereafter they refused to close the sale because Matilda Maier had not signed the contract, and they mailed the $200 check to Mr. Brinkmann. Other pertinent facts will be mentioned in the course of the opinion.

This suit was instituted by the plaintiff on March 1, 1944, the petition alleging that on May 25, 1943, the defendants made, entered into, executed and delivered to plaintiff their written contract and agreement, by the terms of which defendants agreed to pay the plaintiff the sum of $500 commission in consideration of plaintiff, as real estate agent, making sale of their property to one Arthur G. Maier and Matilda Maier, his wife, and by said written contract and agreement so executed by defendants and by plaintiff, and by the earnest money receipt defendants sold to Arthur G. Maier and Matilda Maier, his wife, through the efforts of plaintiff the property, and said Arthur G. Maier and wife paid earnest money to said defendants in the sum of $200, and the consideration was to be paid in cash by said Maier and wife to defendants; that said Maier and wife performed each and every obligation and duty required of them under the contract, and proffered the sum of $17,500 cash to the defendants, but that defendants failed and refused to carry out the terms and conditions of the written contract as made between the defendants and plaintiff, and between Arthur G. Maier and Matilda Maier, his wife.

On June 6, 1944, defendants filed their answer denying that a written contract was ever executed by and between Arthur G. Maier and Matilda Maier, his wife, as purchasers, and the defendants, as sellers, whereby the property was sold to Arthur G. Maier and Matilda Maier, his wife, for the sum of $17,500; denying the execution of a written contract to pay plaintiff $500 commission; and denying each and every allegation in the petition.

Thereafter on April 15, 1946, by leave of court, and over defendants' objection, plaintiff amended the petition by striking out the words, "and Matilda Maier, his wife," wherever they appeared in the petition.

The case was tried before the court and a jury, resulting in a verdict and judgment in plaintiff's favor in the sum of $500. Defendants appeal.

Appellants' main point is that the petition when amended by striking out the words "and Matilda Maier, his wife," constituted a departure from the original petition and stated a different cause of action. It is true that the original petition based plaintiff's right of recovery on defendants' refusal to complete a sale of their property to "Arthur G. Maier and Matilda Maier, his wife," whereas the petition as amended based plaintiff's right of recovery on defendants' refusal to complete a sale of their property to "Arthur G. Maier." It is the settled law that a plaintiff cannot change his cause of action by an amended petition. We find no analogous case involving similar facts as in this case, and diligent counsel have cited us to none. As the proof on plaintiff's behalf afterwards showed, plaintiff procured a contract with Arthur G. Maier as a purchaser of defendants' property in accordance with the contract as finally agreed to, if respondent's evidence is accepted. The gist and substance of plaintiff's claim was that it procured a contract with Arthur G. Maier as a purchaser, and that Brinkmann delivered the completed contract and told the Deidesheimers that Arthur G. Maier alone was accepting their contract to sell, and that the Deidesheimers accepted the contract, and Mr. Deidesheimer stated that would be all right, that it was an all cash propositi...