Da Pron v. Neu

• Citation: 43 S.W.2d 915
• Decision Date: 08 December 1931
• Docket Number: No. 21615.,21615.
• Parties: DA PRON v. NEU.
• Court: Missouri Court of Appeals

43 S.W.2d 915

DA PRON v. NEU.

No. 21615.

St. Louis Court of Appeals. Missouri.

December 8, 1931.

Rehearing Denied December 22, 1931.

Appeal from St. Louis Circuit Court; Harry E. Sprague, Judge.

"Not to be officially published."

Action by A. P. Da Pron, doing business as the Da Pron Realty Company, against John Neu, Jr. Judgment for the plaintiff, and the defendant appeals.

Reversed, and cause remanded.

Earl M. Pirkey, of St. Louis, for appellant.

Douglas H. Jones, of St. Louis, for respondent.

NIPPER, J.

This is an action to recover commissions for services rendered in connection with the sale of certain real estate belonging to defendant.

The petition alleges that plaintiff is engaged in the real estate business, and that on or about January 3, 1927, he entered into an exclusive sales contract with defendant, in writing, agreeing that, in the event of the sale of certain property located at 4824, 4828, and 4830 Bessie avenue, in the city of St. Louis, defendant would pay to the plaintiff certain commissions, if a sale or exchange of the property was made by any one while the agency was in force, and that in said contract there was a reservation of the right to terminate the contract at any time by giving sixty days' notice in writing. Plaintiff also alleged that during the period the contract was in force defendant sold said property, and, by reason of the terms of the contract, plaintiff is entitled to certain commissions, amounting to $880.

The answer, after a general denial, admitted that plaintiff was a resident of the city of St. Louis, engaged in the real estate business, and that defendant refused to pay plaintiff's claim, and that one piece of property was sold by defendant before June 3, 1927. Further answering, the defendant alleged that, about the time mentioned in plaintiff's petition, plaintiff presented defendant with a proposed contract, and defendant signed the same before it was completed, under agreement that plaintiff was to strike out the clause concerning sixty days' notice in writing, but that plaintiff failed to strike out such clause, and plaintiff resigned and disclaimed and surrendered and abandoned his claim, and whatever rights he had under said alleged contract, and the same were terminated by mutual consent, and up to the time of such surrender and termination there was a sale or exchange of but one piece of property in question, and that plaintiff was paid an agreed sum for such services.

The evidence as offered on the part of the plaintiff tended to show that he first had a contract with defendant which was entered into the latter part of 1926. This was a thirty-day contract, and it expired in thirty days, and covered the property in question. Plaintiff failed in effectuating a sale of any of the property during that time, and about the 3d of January, 1927, he presented the defendant with another contract, giving him the exclusive agency, with the right in defendant to terminate said contract at any time by giving sixty days' notice in writing. This contract was introduced in evidence.

Plaintiff testified that defendant signed the contract, and about the 1st of June, 1927, he visited the defendant, and the defendant told him he had sold the properties, and thereupon plaintiff ceased making any further efforts. The contract provided for the sale of three pieces of property, and the evidence discloses that one piece had been sold before the suit was brought, and plaintiff received his commission for this sale. So this part of the controversy goes out of the case; the suit being for the commissions on the two remaining pieces of property.

There is evidence offered on the part of the plaintiff to the effect that he had taken customers and shown them this property on many occasions prior to the 1st of June, but had succeeded in effectuating a sale of only one piece.

The defendant's evidence was to the effect that, after the first contract was terminated, plaintiff came to him with another form of contract which was not complete, but there were blank spaces to be filled in. Defendant testified that he was busy at the time in preparing a case for trial, and that he told the plaintiff that he would give him sixty days this time to effect his sale instead of thirty, as the former contract provided, and to make the contract just like the other one, except to make it for sixty days instead of thirty; that plaintiff assented to this proposition, and defendant signed the contract, and plaintiff departed.

Defendant also testified that on or about the 1st of June, 1927, plaintiff came to his office and inquired if the property had been sold. Defendant told him that it had not been, that he was negotiating for a sale, and that plaintiff gave him the keys to one of the places and told him that he would have to pay him a commission. Plaintiff made no effort to sell the property after this date. Defendant offered in evidence certain deeds to show that a deed executed to the one piece of property was dated the 15th day of June, and the other was dated November 2, 1927. It appears from defendant's evidence that the sales were made by another realty company, and the commission had been paid to it for its services.

There was a verdict and judgment for plaintiff for $430, being the amount of the commission on the sale of one of these pieces of property, and defendant has appealed.

Among the alleged errors urged as grounds for reversal in this court is that instruction No. 1, given at the request of the plaintiff, directed a verdict for plaintiff if he had sold or "agreed to sell" the real estate in question before June 2, 1927, while the instruction given for the defendant required a finding for him if the houses in question were "sold" after said date, on the theory that these two instructions are contradictory and inharmonious, and the giving of such contradictory and inharmonious instructions constituted reversible error.

It is also insisted that the petition did not plead that plaintiff was to receive any commission, if there was an agreement to sell, and therefore the instruction was broader than the pleadings.

It is also insisted that the court erred in refusing defendant's requested instructions C and D.

In view of the...