Concannon v. Point Min. & Mill. Co.

• Decision Date: 21 March 1911
• Citation: 156 Mo. App. 79,135 S.W. 988
• Parties: CONCANNON v. POINT MIN. & MILL. CO.
• Court: Missouri Court of Appeals

135 S.W. 988

156 Mo. A. 79

CONCANNON v. POINT MIN. & MILL. CO.

St. Louis Court of Appeals. Missouri.

March 21, 1911.

1. BROKERS (§ 54) — COMPENSATION — CONTRACT —"SALES OR SHIPMENTS."

Plaintiff had a contract with defendant to sell barite in certain territory, at an agreed commission on all sales or shipments, whether made direct by plaintiff or otherwise forwarded, or made direct by defendant. Held, that the words "compensation or commission" and "sales or shipments" did not mean a consummated sale, but that plaintiff was entitled to a commission on procuring a purchaser ready, willing, and able to purchase.

For other definitions, see Words and Phrases, vol. 7, pp. 6291-6306; vol. 8, p. 7793.]

2. APPEAL AND ERROR (§ 1008)—FINDINGS OF FACT—CONCLUSIVENESS.

Findings of fact on the evidence by a trial court are conclusive on appeal.

3. BROKERS (§ 86)—COMPENSATION—ACTION —EVIDENCE.

In a broker's action for commissions, evidence held to show a completed agreement of sale and purchase between the seller and a buyer produced by plaintiff, though no written contract was made at the time.

4. BROKERS (§ 63)—COMMISSIONS ON SALES.

In an action for commissions for sales of barite, where plaintiff brought the parties together, and they agreed upon terms and details, and the vice president and manager of the seller company wrote them out and sent the contract as prepared by him to plaintiff to have him procure the signature of the proposed buyer, which he did, and after 11 days the seller repudiated the contract because conditions had changed, plaintiff was entitled to commissions, although the contract was not written out at the time, but was left for a future date.

5. BROKERS (§ 63)—COMMISSIONS—PURCHASE —FINDING PURCHASER.

A broker earns his commission when he finds and produces to the proposed seller one who is ready, willing, and able to buy upon the terms upon which he is authorized to negotiate the sale, and, in case the owner is unable to complete the transaction by delivery, the law declares the sale complete so far as the broker is concerned.

6. CONTRACTS (§ 23)—ORAL AGREEMENTS AFTERWARDS REDUCED TO WRITING.

If an oral agreement is reached, it takes effect immediately, though the parties understand it shall be put into formal writing, unless one of the conditions agreed to orally is that the agreement shall remain ineffective until the writing is executed.

Appeal from St. Louis Circuit Court; Geo. H. Williams, Judge.

Action by Edward Concannon against the Point Mining & Milling Company. From a

judgment for plaintiff, defendant appeals. Affirmed.

Walter H. Nohl, for appellant. S. T. G. Smith, for respondent.

REYNOLDS, P. J.

Plaintiff, respondent here, was a salesman for the appellant company for the sale of barite (a mineral commonly and commercially called barites), in certain territory named, including Missouri, the contract of agency being for a term of three years, commencing July 1, 1904, the defendant's works and principal office being located at Mineral Point, Washington county, this state. The only clauses of the contract here involved and necessary to notice are as follows:

"Compensation or commission agreed upon is fifty cents per ton, this commission to apply on all sales or shipments made in the above specified territory, whether made direct by the said E. D. Concannon, or otherwise forwarded to or made direct by the said Point Mining & Milling Co. Commissions to be paid every sixty days.

"It is also understood that the commission of 50 cents per ton is to be net selling cost to the Point Mining & Milling Company, all expenses for traveling or otherwise, incidental to sales to be borne by the said E. D. Concannon.

"All contracts and sales made under this agreement, shall be subject to and contingent upon the approval of the Point Mining & Milling Co."

Plaintiff claimed that acting under the above contract he had made a sale of 2000 tons of barite to the Hammar Paint Company, on December 15, 1906, and was entitled to his commission, amounting to $1,000, and that not having been paid, he brought this action.

Defendant's answer, admitting the contract, after denying every other allegation, avers that whatever negotiations were had with the Hammar Paint Company by defendant or in its behalf, were never reduced to a contract for the sale of the mineral and that in fact no mineral was ever sold and delivered or shipped pursuant to negotiations and that by reason thereof it did not become and is not liable to plaintiff for the payment of any amount whatsoever.

The case was tried before the court, a jury being waived. At the trial there was evidence tending to show that late in the afternoon of December 15, 1906, a Mr. Becker, representing the Becker-Moore Paint Company, and interested with the Hammar Paint Company in the matter, met plaintiff and a Mr. Buddecke, president of defendant company, in the office of the Hammar Paint Company in St. Louis. It appears that on the day previous, that is, on December 14th, plaintiff had written to defendant at its Mineral Point office, advising it that the Becker-Moore Paint Company and the Hammar Paint Company would make contracts with dealers for such amounts of barite as they would require for the coming year, and that Mr. Becker, representing the former company, had advised plaintiff late that afternoon that they intended closing contracts the following day, Saturday; that Mr. Becker would have all his prices in hand Saturday morning and "says he does not intend to delay longer in closing." That is, as we understand it, the Becker-Moore Company and the Hammar Paint Company were in the market to buy for the ensuing year, and intended closing contracts with such dealers as would give them the best terms, and that they intended closing up the matter that day. Plaintiff further advised defendant in his letter, that he had told Mr. Becker that he would write defendant and request it to wire him (Concannon) the figure it would make for the contract. Plaintiff also stated in the letter that Mr. Becker said that if defendant could not quote him (Concannon) Saturday, he (Becker) intended closing without prices from defendant. That is, they would give the contract to such other dealers as were then prepared to close with them. Plaintiff therefore in this letter, requests defendant to wire him on receipt and that he hopes the prices of defendant will secure the business. In response to this letter Mr. Macklind, vice-president of defendant company, telephoned plaintiff that Mr. Buddecke, the president, and he were together in St. Louis, and that they had thought the matter over, were ready to make prices to secure the Hammar contract, and would come to plaintiff's office to talk about it, plaintiff's office being in St. Louis. Accordingly on that Saturday morning, December 15th, Messrs. Macklind and Buddecke visited plaintiff at his office and Mr. Macklind said they were now prepared to try to get the contract with Hammar and Becker and named $14.75 a ton, in car lots, f. o. b. St. Louis, as the price. Whereupon plaintiff telephoned Mr. Becker and arranged a meeting for that Saturday afternoon at four o'clock at Mr. Becker's office in St. Louis. Mr. Macklind, however, had to return to Mineral Point and plaintiff and Mr. Buddecke saw Mr. Becker, who said he wanted bedrock prices for the next year's requirements for his company and the Hammar Company. Mr. Buddecke said the best price of his company was $14.75 a ton, carload lots, f. o. b. St. Louis. They then discussed the question of cash discounts, dates of payments, etc., and Mr. Becker said he could not close the contract on account of the great advance in the price without seeing Mr. Hammar. Thereupon about half past five in the afternoon of that Saturday, Mr. Buddecke, Mr. Becker, plaintiff and Mr. Hammar, the latter representing the Hammar Paint Company, met in Mr. Hammar's office in St. Louis, Mr. Hammar being president of the F. Hammar Paint Company, and all of them being together the price was named as above, and terms, question of discounting paper, etc., were discussed, and while Mr. Hammar complained that the rise in the price was very material, Mr. Buddecke stated that was his price. Mr. Hammar said: "You have got me, and so we will have to make the price just what you say the price must be." Whereupon Mr. Hammar told Mr. Buddecke to sit down and write out the agreement and they would sign it up. Mr. Hammar then looked at his watch, and saying that as it was half past six, he was obliged to go to meet an engagement, and would not have time to write the paper up then, Mr. Buddecke said that he would go and telephone it into the works, located, as stated, at Mineral Point, about 60 miles south of St. Louis. The meeting broke up and Mr. Buddecke and plaintiff went to plaintiff's office and wrote out several telegrams, but on suggestion of plaintiff, that the next day would be Sunday, and that he might as well communicate with his office by mail, Mr. Buddecke said he would "long distance" it into the office the next morning. Mr. Buddecke then left Concannon, he and Buddecke "both feeling good about the contract," and the latter left plaintiff, saying he was going to start for Las Vegas the next day, Sunday. On Monday morning, the 17th, plaintiff received copies of the contract by mail from the defendant company, in...