C. Myers & Simpson Co. v. Feese Real Estate, Inc., WD

• Decision Date: 21 January 1986
• Docket Number: No. WD,WD
• Citation: 705 S.W.2d 600
• Court: Missouri Court of Appeals
• Parties: C. MYERS & SIMPSON COMPANY, Appellant, v. FEESE REAL ESTATE, INC., Respondent. 36817.

Page 600

705 S.W.2d 600

C. MYERS & SIMPSON COMPANY, Appellant, v. FEESE REAL ESTATE, INC., Respondent.

No. WD 36817.

Missouri Court of Appeals,

Western District.

Jan. 21, 1986.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and

Denied March 4, 1986.

James W. Gallaher (Bushman, Neff, Gallaher & Brown, of counsel), Jefferson City, for appellant.

Charles E. McElyea (Phillips, McElyea, Walker & Carpenter, of counsel), Camdenton, for respondent.

Before SOMERVILLE, P.J., and PRITCHARD and BERREY, JJ.

PRITCHARD, Judge.

In a trial to the court on appellant's claim for one-half of a real estate commission in the amount of $40,000, judgment was entered for respondent.

The property in question adjoins the business route of U.S. Highway 54 in Lake Ozark, Missouri, and was owned by H & E Investors, Inc. Appellant's place of business is next to this property. H & E had previously listed the property with appellant, but that listing was terminated by Al Elam, H & E's president. On December 22, 1980, H & E gave respondent an exclusive listing to June 22, 1981, which was extended by another listing until March 9, 1982, under the date of December 9, 1981. Appellant's agency sign remained on the property after its listing was terminated by H & E.

Although the exact date is not in the record, in early December, 1981, appellant's salesman, Wilhelmi, showed the property to Carl Barnes and his brother-in-law, Mike Morris, and discussed with them the purchase price and interest rates. There were some Osage Outdoor advertising signs on the property, and the Barnes asked appellant to have the Barnes' attorney, Warren Donaldson, draw the contract for sale because of the sign. Donaldson did draw the contract between the Barnes and H & E; he called appellant for a legal description which appellant supplied; and Donaldson negotiated the release of the sign leases, in which appellant did not participate, but respondent did. Respondent had advised Donaldson that it was the listing agent in December or early January.

Respondent's Don Feese had a meeting with Donaldson on December 8th or 9th, 1981, during which Donaldson indicated that he had a client interested in the property, but did not tell Feese the client's name. Appellant's Jim Simpson had a meeting with Don Feese on December 14, 1981, during which he told Feese that Donaldson was writing up a contract for H & E's property. Simpson testified that he told Feese the potential buyer was Carl Barnes, but Feese testified that he was not told by Simpson who the buyer was.

In December (1981) or early January, 1982, the Barnes asked Donaldson to hold up the contract which they had signed until they gave him authorization, which they later did, and on February 23, 1982, Donaldson mailed the signed contract with a $10,000 down payment to respondent. It was signed by H & E on March 1, 1982. A copy of Donaldson's transmittal letter to respondent was sent to appellant.

The closing of the contract was had at a bank on May 3, 1982, there being present the Barnes, Al Elam, and Doug Varner, a representative of Donaldson's office. Appellant attempted to participate in the closing, but was not allowed to do so, and thereafter Wilhelmi asked Feese for appellant's share of the commission, to which Feese responded that he had nothing to say to them.

The trial court's judgment recites that appellant elected to submit its case on Count I of its first amended petition, and therefore Count II was dismissed. Count II pleaded that respondent was liable, under a contract implied in law, to pay appellant a $20,000 commission. Count I does not plead an implied contract, i.e. in quantum meruit, yet in Point I of its brief, appellant states that it is entitled to recover the value of services rendered on a contract implied in law when it is proved; that it rendered services which benefitted respondent; respondent knowingly accepted and retained the services; appellant rendered the service with the expectation of being paid under circumstances where it would be unfair to not pay it for these services; and the value of the service was proved. With considerable merit, respondent contends that the appeal should be dismissed because appellant abandoned its implied contract (quantum meruit) claim of Count II, and elected to submit on Count I, which did not allege a contract implied in law, but did allege an oral agreement between the parties. This court cannot find any allegation of an oral agreement, unless it could arise under the allegation that there was a custom and practice among realtors of the area to split commissions on a shared basis between the listing and selling broker, a matter which will be later discussed. Regardless of the deficiency in the pleading of Count I, the proof will be examined to see if recovery was justified on a quantum meruit...