O'Connor v. Shelman, WD
| Decision Date | 25 April 1989 |
| Docket Number | No. WD,WD |
| Citation | 769 S.W.2d 458 |
| Parties | Jim O'CONNOR and John O'Connor, Plaintiffs-Appellants, v. Floyd SHELMAN, Nelle Shelman, Kenneth Mort, and First National Bank of Gallatin, Defendants-Respondents. 40636. |
| Court | Missouri Court of Appeals |
John F. Burns, St. Joseph, for appellant.
Harold L. Miller and Martin Day Miller (argued), Maysville, for respondent Shelman.
John Manring and G. Brent Powers (argued), St. Joseph, for respondent Mort.
Robert B. Miner (argued) and Michael L. Taylor, St. Joseph, for respondent First Nat. Bank of Gallatin.
Before NUGENT, P.J., and CLARK and LOWENSTEIN, JJ.
Plaintiffs Jim O'Connor and John O'Connor appeal from the trial court's order directing a verdict in favor of defendants Floyd Shelman, Nelle Shelman, Kenneth Mort, and the First National Bank of Gallatin. The order defeated the plaintiffs' claim for tortious interference with a business expectancy. We affirm the trial court's decision.
The plaintiffs assert on appeal that sufficient evidence supported their claim against each of the defendants. A court may direct a verdict against the plaintiffs only if, after considering the evidence in the light most favorable to the plaintiffs and giving them the benefit of all of the reasonable inferences from those facts, reasonable minds could not differ that no cause of action exists. Lake v. Farm Bureau Mutual Insurance Co. of Missouri, 624 S.W.2d 28, 29 (Mo.App.1981). To avoid the directed verdict, however, the plaintiffs must present substantial evidence to support each element of their cause of action. Francisco v. The Kansas City Star Co., 629 S.W.2d 524, 529 (Mo.App.1981).
This controversy arose because three buyers wanted the same piece of property, a house and a 93 acre tract of land in DeKalb County (The Gray Farm). Two of the buyers could afford it and one could not. Two real estate agencies each wanted the commission from the sale. Defendant Shelman represented one buyer who could not afford it and one who could. The plaintiffs also represented a buyer with adequate means. The buyer with the least means got the first contract. Defendants Shelman and Mort got the commission.
The sellers, Charles and Wilma Gray, placed the acreage on the market as an open listing. 1 Floyd Shelman, a real estate broker in Cameron showed the property to Wesley and Paula Strange. The Stranges decided to pay the Grays' $125,000 asking price. The purchase contract called for the Stranges to finance the purchase by assuming a $105,000 note on the property, paying $1,000 down, giving the seller a note for $5,000, and securing a loan for the remaining $14,000. The contract provided that it would become null and void unless the Stranges obtained financing within fifteen days of its March 17, 1983, execution date.
The O'Connors represented Jack Cowen, who also showed an interest in the Gray farm. The plaintiffs, after trying for several days finally contacted the Grays, and told them that they had an interested buyer. Mr. Gray told the O'Connors that the property was subject to an existing sales contract and that the buyers had until April 1 to perform. The O'Connors prepared a "backup" contract for the Cowens and Grays calling for a sale price of $135,000. The parties would close the purchase only if the buyers produced a written cancellation of the prior contract. The Grays signed and returned the contract on March 25, 1983.
The Stranges, pursuant to the first sales contract, attempted to obtain financing for their down payment from the First National Bank of Gallatin. The loan officer believed that Mr. and Mrs. Strange had offered insufficient collateral for the loan, and suggested that they should attempt to obtain co-signers before the bank would lend them the money. The Stranges eventually decided to give up on the loan. Thinking that the deal was off, they picked up their earnest money check from Mr. Shelman's office and returned the key to the farmhouse. They did not, however, execute any document cancelling the contract.
In the meantime, a third buyer, Roy Worrell, pursued his own plan to purchase the farm. He lived next to the Grays before they moved from the farm in January of 1983. Initially, believing their asking price was too high, he had turned down their offer to sell him the farm. In late February, however, he decided to buy the farm. He asked defendant Kenneth Mort to contact the Grays. Mr. Mort worked as a vice president of the defendant bank, but he also held a real estate license. He tried, but never reached the Grays.
In late March, Mr. Worrell's son, Dick Worrell, finally contacted the Grays about buying the farm. He learned at that time that the Grays had two sales contracts pending. Roy Worrell then asked Mr. Mort if he knew who had the purchase contract on the Gray farm. Because the Stranges had sought their financing through the bank, Mr. Mort knew that they held the contract. Mr. Worrell told Mr. Mort he would pay the Stranges $500 for an assignment of their contract. Mr. Mort contacted the Stranges and Mr. Shelman. The Stranges agreed, and Mr. Shelman dictated the terms of the assignment to Mr. Mort.
On March 29, 1983, the Stranges executed the assignment. Later that day, Mr. Shelman suggested that the Stranges execute a contract to sell the farm to Mr. Worrell. Mr. Worrell and the Stranges agreed to that arrangement, and Mr. Mort, at Mr. Shelman's direction, prepared a sales contract. The Strange-Worrell sales contract then provided the collateral for the loan necessary to consummate the Gray-Strange sale. The bank issued a $20,000 loan to the Stranges, documented by a note dated March 29, 1983.
The O'Connors learned of the assignment on that day, after Mr. Shelman called them to obtain the abstract for the property. Jim O'Connor delivered the abstract and obtained a copy of the Gray-Strange sales contract. That contract indicated that it would expire unless the Stranges obtained financing by April 1, 1983. On April 1, the O'Connors visited the bank to determine whether the Stranges had secured a loan. Mr. Mort informed them that they had requested confidential information and he could not release it.
On April 8, 1983, two sales transactions occurred in Mr. Mort's office. The Grays completed their sale of the farm and executed a deed to the Stranges, who in turn sold the farm to the Worrells, executing a deed in their favor. Mr. Shelman received a $5,000 commission on the Gray-Strange transaction. He paid Mr. Mort $1,250 of that commission for his efforts. None of the...
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