Corder v. O'Neill

• Decision Date: 10 December 1907
• Citation: 207 Mo. 632,106 S.W. 10
• Parties: CORDER v. O'NEILL.
• Court: Missouri Supreme Court

106 S.W. 10

207 Mo. 632

CORDER v. O'NEILL.

Supreme Court of Missouri, Division No. 2.

December 10, 1907.

BROKERS — RIGHT TO COMMISSIONS — RECEIVING COMMISSIONS FROM BOTH PARTIES.

Where plaintiff was employed by defendant to sell a mining lease, as a broker, for $90,000, out of which defendant agreed to pay plaintiff $5,000 commission, and plaintiff thereupon agreed with the agent of the purchaser to pool commissions, so that plaintiff received a portion of the commissions paid by the purchaser to his agent, plaintiff was not a mere middleman, and, having contracted to receive commissions from both parties without defendant's knowledge, he could not recover from defendant.

Appeal from Circuit Court, Jasper County; Hugh Dabbs, Judge.

Action by Hal Corder against James O'Neill. From a judgment for defendant, plaintiff appeals. Affirmed.

This cause reaches this court by appeal on the part of the plaintiff from a judgment of the Jasper county circuit court in favor of the defendant. This action results from a transaction between the plaintiff and the defendant concerning the sale of a certain mining lease placed in the hands of plaintiff for sale by the defendant, and an agreement and contract entered into by which the sum of $5,000 was to be paid plaintiff as commission for the consummation of such sale. This is the second appeal of this cause to this court. The first appeal was upon the part of the defendant, and the cause was reversed and remanded. This appeal, as before stated, is on the part of the plaintiff.

The nature and character of this proceeding is fully set forth in the case of Corder v. O'Neill, 176 Mo. 401, 75 S. W. 764. It is therefore not essential to reproduce in detail the entire pleadings, but it will be sufficient to a full understanding of the issues presented in the last trial of this cause to briefly refer to some of the allegations in the petition and answer. The petition alleged that the plaintiff "was at all times hereinafter mentioned engaged in the business of selling real estate, mines, mining property, and leases on mining property in Jasper county, Mo., as agent for such persons or concerns as might employ him therefor, and on March 22, 1899, the defendant, James O'Neill, was the owner of a certain lease known and described as the `Get There' lease, in or near the city of Carterville, in said county and state, and on said day he was desirous of selling the same; that at the same time the plaintiff had, as customer for a piece of mining property, one C. C. Playter, who desired for himself and others, and especially for one R. Tibbets, of Boston, Mass., to purchase a mining lease in Jasper county, Mo., and on said date the defendant entered into a contract with the plaintiff, whereby he agreed that if said Playter or his assigns should take the lease of the defendant, known as the `Get There' lease, and should comply with the conditions of a contract made with the said Playter or his assigns for said lease, and should pay to the defendant the sum of $90,000 in cash for said lease on or before the 1st day of May, 1899, then the defendant will pay the plaintiff the sum of $5,000 in full for all commissions and compensation for services rendered by the plaintiff in and about the sale of the said `Get There' lease; * * * that during the existence of said contract the said Tibbets, through his said agent, requested of the defendant that he would extend the time for the payment of the balance of the purchase money for said lease until the first day of June, 1899. Said contracts are herewith filed, marked `Exhibits A and B.' Plaintiff further states that, at the time of procuring said property for sale defendant only asked the sum of $85,000 therefor, and, by agreement with defendant, offered and contracted said property for the sum of $90,000; it being agreed that the excess over $85,000, to wit, $5,000, should be paid by defendant to plaintiff for making said sale; that within the time limited plaintiff sold said property for $90,000 to one Fredk. R. Tibbets on March 22, 1899, and $5,000 of the purchase price was thereupon paid by said Tibbets to plaintiff, and the balance was to be paid by said Tibbets on or before May 1, 1899." The foregoing averments were followed by allegations asserting that there was a verbal agreement entered into between Tibbets, the purchaser procured by the plaintiff, and the defendant, to extend the contract for 30 days, giving said Tibbets that much more time to purchase said property. Then follows the averment alleging a breach of such oral agreement, and the prayer for relief that by reason of the breach of such verbal agreement and promise to extend said original contract by the defendant, and by reason of the fraud thereby practiced upon the plaintiff, plaintiff is damaged in the sum of $5,000, for which sum he prays judgment. After this cause was remanded to the circuit court of Jasper county for a new trial, the defendant filed an amended answer on January 4, 1904. The first paragraph of said amended answer was a general denial.

The new matter set up in the amended answer was as follows:

"Second. Further answering, defendant states that, without his knowledge or consent, the plaintiff agreed to and did receive money as commission or compensation for services in and about the alleged sale from the purchaser of the property described in the petition, and thereby forfeited all his claim against defendant, and is not entitled to recover herein.

"Third. Further answering defendant states that, without the knowledge or consent of defendant, the plaintiff entered into an agreement with the representatives of the purchasers of the property described in the petition to `pool,' or divide, the commissions received and to be received from the defendant and the purchaser of said property in the petition described; that said agreement was made before the consummation of the sale of said property; that, in pursuance of said agreement, the agent of the said purchaser did receive money from the latter as commission or recompense for services in and about said purchase, and did carry out said agreement and pay a portion thereof to defendant; by reason whereof, plaintiff forfeited all his claims against defendant and is not entitled to recover herein." To this amended answer the plaintiff filed a reply, which embraced a general denial of the new matter, and, "further replying, plaintiff avers that plaintiff procured and introduced the purchaser to defendant and that plaintiff had no hand in the negotiations between them; that said purchaser and defendant made their own bargain without plaintiff having anything to do with fixing of the price or terms of said sale, and without plaintiff's interference in anywise. Wherefore plaintiff prays judgment as in his petition prayed." Upon the issues thus presented, the trial of this cause proceeded. It is practically conceded that the facts developed at the trial of this cause are substantially the same as in the trial of the cause upon the former appeal, except as to the evidence introduced upon the issue presented by the new matter in the amended answer of defendant. Hence we deem it unnecessary to undertake to again repeat the facts developed which fully appear in the case of Corder v. O'Neill, supra; and shall confine our reference to the testimony to the issue presented by the new matter in the amended answer of the defendant.

The testimony, as disclosed by the record upon this issue, is quite voluminous; but doubtless the trial court sustained a demurrer to the evidence upon certain statements testified to by the plaintiff and witness Mr. Geddes, who was also interested in the transaction. Therefore we deem it sufficient to refer briefly to the testimony of the plaintiff and Mr. Geddes upon the issue presented in the answer of the defendant, and upon which the court's action in sustaining the demurrer to the evidence was predicated.

The plaintiff was introduced as a witness; and upon the subject of his employment by the defendant to make this sale said: "Q. Who named the price at which this property would be sold — who fixed the price? A. Mr. Bruen. Q. What was said in that connection, Mr. Corder, about the price of the property and the commission? A. We asked Mr. Bruen what his price was, and he said the price was $85,000. Then I said, `Mr. Bruen, will you allow my commission out of that?' and he said, `You will have to add it to it'; and I said to him, `If I add my $5,000 to it, will you then hold the price at $90,000, and give me a contract back for the $5,000?' and he said, `Yes.' That was the agreement between us."

As applicable to this same subject of employment and the nature of the employment, witness Mr. Geddes testified as follows: "Q. You may state if you went there by arrangement between you and Mr. Corder at the time. A. Yes, sir. Q. Now, go ahead. A. Col. O'Neill said it was for sale, but was in such shape he couldn't give an option. * * * I told him the parties were cash purchasers, and didn't care for an option if he could sell it, and he said he could. Said his price was $85,000. * * * I told him I would add my commission to that amount. Q. Did you state what it was? A. No; I didn't at that time tell Col. O'Neill. I think I didn't. I am not sure. Q. State further all that was said. A. Well, he said he would want an immediate payment for the property, and would give time on the balance."

The plaintiff again, in testifying as to the information that he acquired from the defendant in relation to the property, said: "Q. Now, what, if any, statistics did you get up in regard to the property and send to any of the parties you were putting this property to? A. I furnished a regular statement of it, together with a prospectus of it written up and describing the property. Q. Well, probably the jury would not understand what a regular statement was? A. Statement of the production and earnings, etc.,...