Clay v. Lakenan

• Decision Date: 14 April 1903
• Citation: 74 S.W. 391,101 Mo. App. 563
• Court: Missouri Court of Appeals
• Parties: CLAY v. LAKENAN et al.<SMALL><SUP>*</SUP></SMALL>

74 S.W. 391

101 Mo. App. 563.

CLAY v. LAKENAN et al.^*

Court of Appeals at St. Louis, Missouri.

April 14, 1903.

BROKERS—SERVICES IN PROCURING LOAN— COMMISSIONS—PAYMENT OF LOAN—WHAT CONSTITUTES.

1. Defendants, pursuant to agreement with plaintiff, procured him a loan of $20,000 on certain property. As compensation for their services, plaintiff agreed to pay defendants "on the 1st day of July in each of the years 1899 and 1900" a sum stated, "and on the 1st day of each succeeding July, so long as my note of even date herewith for the sum of $20,000 in favor of [the mortgagee], or any part thereof, remains unpaid," a certain percentage per annum "on the unpaid part of said note." Thereafter plaintiff, dealing directly with the mortgagee, procured an additional loan of $5,000. Afterwards the two notes for $20,000 and $5,000, with the deeds of trust securing them, were surrendered, and marked "Paid," and a new note for $25,000, secured by deed of trust on the same property, executed in place thereof. Held not to constitute a payment of the $20,000 note, so as to release plaintiff from the further payment of commissions.

Appeal from Circuit Court, Audrain County; Elliott M. Hughes, Judge.

Replevin by Green Clay against Jos. G. Lakenan and others. Judgment for defendants, and plaintiff appeals. Affirmed.

J. A. Baker and W. W. Fry, for appellant. Geo. Robertson and C. A. Barnes, for respondents.

REYBURN, J.

On April 8, 1898, the appellant submitted an application to respondents at Mexico, Mo., for a loan of $20,000 for five years at the rate of 6 per cent. per annum, to be secured by a deed of trust on realty in Audrain county. By the terms of this application respondents were to pay the expenses incident to the loan, and the provision for their compensation was thus made: "If said agents shall be able to procure said loan on April 24, 1898, I hereby agree to pay a commission of ___, the annual difference between the rate at which the loan is obtained from loaner and 6 per cent. per annum; it being agreed to pay as commission the annual difference above only for the number of years this loan runs—five years or less, and no longer; in case of loan being reduced after two years, the annuity or commission to cease on such part as is paid;" and on the back of the application was indorsed the following: "This contract is duly modified so as to bind said Clay to pay the extra interest [of difference between rate of loan and 6 per cent.] only on such part of its principal as shall remain unpaid in case a portion is paid off." Pursuant to the terms of this application, respondents procured a loan of the sum named from the Northwestern Mutual Life Insurance Company of Milwaukee, and plaintiff executed and delivered to the insurance company a note for $20,000, and a deed of trust securing same, both of date May 16, 1898; the debtor being accorded the right after two years, on any interest day, of paying on account of the principal $500, or multiples thereof. Thereafter, July 1, 1899, the plaintiff himself, dealing with the insurance company directly, borrowed the additional sum of $5,000 from it for a fixed period of five years, secured by a second deed of trust on the same property. On the 17th day of May, 1901, plaintiff agreed with the insurance company, the mortgage creditor, to merge the two loans and the existing notes, respectively, for $20,000 and $5,000, and the deeds of trust securing them were surrendered by the insurance company and stamped, "Paid. Northwestern Mutual Life Insurance Company. Canceled May 17, 1901," and deeds of release of date May 8, 1901, acknowledging satisfaction and payment of the promissory notes mentioned in these two deeds of trust, were duly executed and delivered by the Northwestern Mutual Life Insurance Company, and a new note for the sum of $25,000, of date January 1, 1901, executed by plaintiff to the insurance company, together with a deed of trust of the same date, conveying the same property, recorded April 6, 1901. In payment of their commissions for negotiating the original loan of...