Brummet v. Livingston, 24042

• Citation: 384 S.W.2d 101
• Decision Date: 05 October 1964
• Docket Number: No. 24042,24042
• Parties: J. Raymond BRUMMET, d/b/a Capital Realty Company, Plaintiff-Respondent, v. Robert LIVINGSTON, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 101

384 S.W.2d 101

J. Raymond BRUMMET, d/b/a Capital Realty Company, Plaintiff-Respondent, v. Robert LIVINGSTON, Defendant-Appellant.

No. 24042.

Kansas City Court of Appeals, Missouri.

Oct. 5, 1964.

Application to Transfer Denied Feb. 8, 1965.

William A. Seibel, Jefferson City, for appellant.

David Brydon, Graham & Hawkins, Jefferson City, for respondent.

SPERRY, Commissioner.

Plaintiff sued defendant for recovery of Commission alleged to be due him by reason of the sale of a parcel of real estate in Jefferson City. A summary judgment was rendered for plaintiff, in the sum of $847.50. Defendant appeals.

Plaintiff's petition is in quantum meruit. He alleged that he is a licensed real estate broker; that, sometime prior to April 12, 1958, defendant was the owner of a parcel of real estate located at 418 Castle Drive, Jefferson City, which he wished to sell; that defendant authorized plaintiff to find a buyer for it; that plaintiff, on April 12, 1958, produced a buyer for the property; that such buyer was ready, able and willing to buy; that defendant entered into a written contract with said buyer, agreeing to sell the property to him on terms mutually agreed upon; that a copy of that contract is attached to the petition and made a part thereof; that, upon signing of the contract, plaintiff was entitled to a reasonable fee for his services; that a reasonable fee was 5% of the sale price agreed upon ($16,950.00) or the sum of $847.50.

Defendant filed an answer in the nature of a general denied. Defendant submitted interrogatories to plaintiff which were answered as ordered by the Court. Plaintiff requested certain admissions, which were made by defendant. Prior to trial, plaintiff submitted affidavits in support of his motion for summary judgment, under the provisions of Civil Rule 74.04(a), V.A.M.R. The motion for summary judgment was sustained and judgment for plaintiff was entered. Defendant submitted no proof.

It is the law that a summary judgment may be entered only when the party seeking it shows, by unassailable proof, that he is entitled to judgment as a matter of law. The proof submitted should leave no room for controversy and should show, affirmatively, that the other party would not be entitled to recover under any discernible circumstances. Brown v. Prudential Insurance Co., Mo.App., 375 S.W.2d 623, 628. A summary judgment may be entered after the pleadings, depositions, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Brown v. Prudential Insurance Co., supra, 375 S.W.2d 628, 629.

The proof submitted for plaintiff was to the effect that plaintiff was a duly licensed real estate broker, engaged in that business in Jefferson City; that, on March 4, 1958, defendant appointed plaintiff as his exclusive agent to sell the real estate here involved, and in the written memorandum thereof provided: 'if this property is sold during the time this agreement is in force by anyone, or if sold to anyone to whom said property was submitted by Capital Realty Co., within three months of the termination date thereof; then, in that event, the undersigned shall pay Capital Realty Co., five percent of the sales price as their commission due'; that plaintiff showed the property to Mr. Hayes and, on April 12, 1958, within three months of the termination date of the above written authority of plaintiff as exclusive agent, defendant and Hayes entered into a written contract for the sale of the property to Hayes on terms mutually agreeable, for $16,950.00, providing for delivery of deed, possession, and closing on May 30, 1958; and that the sale contract provided: 'Commission payable when contract is signed to Capital Realty Co.'

The proof also showed that, less than one week after the contract was signed, Mr. Hayes observed a Mr. and Mrs. Jaeger moving into the property, and that defendant delivered to the Jaegers a warranty deed to the property on May 6, 1958.

Defendant filed a general denial with no affirmative pleading. He admitted his signature to the written instruments whereby he gave exclusive authority to plaintiff to sell the property and to pay him a commission of 5% on the sales price, and to the contract of sale of the property to Hayes, as above mentioned. He relied on his answer and...