Carr v. Ubsdell

• Decision Date: 16 December 1902
• Citation: 71 S.W. 112,97 Mo. App. 326
• Parties: CARR v. UBSDELL.
• Court: Missouri Court of Appeals

71 S.W. 112

97 Mo. App. 326

CARR v. UBSDELL.

Court of Appeals at St. Louis, Missouri.

December 16, 1902.

AGENT — GOOD FAITH — COMMISSIONS — DIRECTING VERDICT — REVIEW ON APPEAL.

1. An agent is bound to most perfect good faith toward his principal. He cannot properly assume another employment, inconsistent with his first engagement, without forfeiting his right to commissions.

2. The evidence in the case at bar is reviewed, and it is held that the testimony does not conclusively show, as a matter of law, that the plaintiff was acting on behalf of both buyer and seller; and the trial court having found as a fact that plaintiff was employed by defendant at an agreed commission, and that he executed the sale, the verdict in his favor for compensation is affirmed.

3. Where there is evidence tending directly or by reasonable inference to prove the plaintiff's case, it is error to give a peremptory instruction to find for defendant; and this rule is as applicable to trials by the court sitting as a jury as to trials by jury.

4. It is not the proper province of an appellate court to pass upon the weight of evidence in an action at law for the recovery of money. (Syllabus by the Judge.)

Appeal from St. Louis circuit court; John A. Talty, Judge.

Action by C. B. Carr against John A. Ubsdell. Judgment for plaintiff, and defendant appeals. Affirmed.

Frank E. Richey, for appellant. Haeussler, Broadhead & Haeussler, for respondent.

BARCLAY, J.

This is an action by the plaintiff, a real estate agent, to recover "commissions" for effecting a lease of certain real property for a term of 99 years to Mr. Samuel M. Dodd. The property is that on which stand houses Nos. 412, 414, 416, on Washington avenue, in St. Louis. It belonged to defendant. According to plaintiff's petition, it was leased by defendant to Mr. Dodd, through the agency of plaintiff, at a rental of 4 per cent., net, on a valuation of $125,000. The answer admits the making of the lease as described, but "charges the fact to be that the plaintiff, in the matter of procuring the leasing of the property mentioned in the plaintiff's petition, to Samuel M. Dodd, was at all times the agent of the said Samuel M. Dodd, and acting in his interest and on his behalf, and for his said services as such agent the plaintiff was paid by the said Samuel M. Dodd." The reply of plaintiff denied the new matter. There was a trial by Judge Talty, a jury having been waived. At the close of the testimony the court refused a binding declaration of law in favor of defendant, and gave the following declarations at his request, viz.: "(1) The court declares, as a matter of law, that if the court, sitting as a jury, finds from the evidence that the plaintiff in the lease transaction set up in his petition was in fact the agent for S. M. Dodd, and represented and acted for said Dodd in negotiating or procuring the said lease, the plaintiff cannot recover. (2) The court declares, as a matter of law, that if the court, sitting as a jury, finds from the evidence that neither the defendant nor his agent requested the plaintiff to render any of the services alleged in the plaintiff's petition to have been performed by the plaintiff, and that the defendant, through his agent, W. L. Wright, informed the plaintiff that the defendant would not pay the plaintiff for any such services, and would not pay a commission for procuring a leasing of the property mentioned in the plaintiff's petition, and that plaintiff thereafter acted in the procurement of the said lease as the agent for S. M. Dodd, the plaintiff cannot recover." No declarations were asked or given for plaintiff. Then the court found for plaintiff in the sum of $3,125 and interest (total, $3,192.70), and there was judgment accordingly, from which defendant appealed after the ordinary formalities. There was abundant evidence to support the amount of the recovery, if plaintiff was entitled to recover at all. Several real estate agents testified, without objection, that the customary commission in St. Louis for effecting a lease for a term of 99 years was 2½ per cent on the value of the leased property. The defense was that plaintiff was in fact the agent for Mr. Dodd. The defendant appears to have been a nonresident of this state during the dealings out of which this case arose. He had a friend, Mr. Wm. L. Wright, who acted for him in St. Louis, and through whom some of the negotiations leading to the consummation of the lease were conducted. The plaintiff's version of the matter is that, about two years before the lease was consummated, he interviewed Mr. Wright, at the request of Mr. Dodd, to see whether the owner would sell the property in question. Plaintiff then introduced defendant to Mr. Dodd, and some negotiations ensued, but no agreement was reached. That "deal" fell through and was abandoned. Later, in February, 1901, according to plaintiff's testimony, he saw Mr. Wright, and told him he thought he could negotiate a lease of the property. Mr. Wright assented, and told him that, as they had had trouble before, to get a written proposition from Mr. Dodd; also to tell him (Wright) that his (plaintiff's) c...