Darnall v. Lyons

• Decision Date: 23 May 1932
• Docket Number: No. 17425.,17425.
• Citation: 51 S.W.2d 159
• Parties: DARNALL v. LYONS et al.
• Court: Missouri Court of Appeals

51 S.W.2d 159

DARNALL v. LYONS et al.

No. 17425.

Kansas City Court of Appeals. Missouri.

May 23, 1932.

Rehearing Denied June 13, 1932.

Appeal from Circuit Court, Jackson County; Clarence A. Burney, Judge.

"Not to be officially published."

Action by Charles D. Darnall against T. J. Lyons, the Brotherhood State Bank of Kansas City, Kan., H. H. Souders, and another. From a judgment setting aside a verdict for named defendants and granting plaintiff a new trial, defendants Lyons and the Bank appeal.

Affirmed.

Arthur J. Mellott, of Kansas City, Kan., and Cope & Hadsell and Walter A. Raymond, all of Kansas City, Mo., for appellants.

Gossett, Ellis, Dietrich & Tyler, of Kansas City, for respondent.

TRIMBLE, P. J.

Plaintiff is a real estate broker in Kansas City having for some time an established office and well known to be in that business. In this action he sues to recover a real estate broker's commission for securing one Pugh as a lessee for defendants, of the Avalon Hotel in Kansas City and a purchaser of the hotel furniture, furnishings, and equipment thereof. The suit is on the quantum meruit, and the amount shown by plaintiff's evidence as the reasonable charge for securing such lessee (but not including the charge for securing him as a purchaser of the furniture, etc.) is $960, for which he asked judgment. Originally there were four defendants. T. J. Lyons (known in the record sometimes as Timothy Lyons, and sometimes as Lyons, Sr., to distinguish him from his son, T. J. Lyons, Jr., who appears somewhat in the case as the manager of the hotel), Brotherhood State Bank of Kansas City, Kan., Charles W. Schiller, and H. H. Souders. The three first-named defendants filed a joint answer which was a general denial. The fourth-named defendant, Souders, filed no answer and, although a witness placed on the stand by plaintiff, made no defense. During the trial plaintiff dismissed as to defendant Schiller for reasons which will hereinafter appear. Although it would seem that plaintiff was entitled to a default judgment against Souders, none was asked; plaintiff submitting the issues to the jury with respect to said defendant along with the other two remaining defendants.

After the evidence was heard, the jury unanimously returned a verdict finding "the issues for the following defendants: Brother-hood State Bank, T. J. Lyons and H. H. Souders."

Plaintiff's motion for new trial contained six grounds: (1) The jury failed to follow and observe, and did disregard, the instructions of the court; (2) the "verdict is insufficient and is irresponsive to the issues"; (3) the "verdict is contrary to the law of the case, in that the defendant H. H. Souders made no answer in the cause, made no defense, and, at the trial in testifying, admitted facts upon which plaintiff was entitled to a verdict against him, and the facts, under the instructions of the court, given at plaintiff's request, were such that plaintiff was entitled to recover thereon against said defendant"; (4) the "verdict is the result of passion and prejudice on the part of the jury"; (5) the "verdict is contrary to the law and the evidence in the case"; and (6) the "verdict of the jury is in favor of defendant Souders, whereas under the instructions of the court and the evidence, the same should at least have been against defendant Souders, and such action by the jury shows that they disregarded the law and the evidence in the case and did not observe the instructions of the court."

The court sustained the motion, and, setting aside the verdict, granted plaintiff a new trial, but did not state the grounds of his action or the reason for granting a new trial.

The defendants Lyons and Brotherhood State Bank have appealed.

Long prior to December, 1928, defendants Lyons and Souders were the owners (each a one-half interest) of a 99-year leasehold on the Avalon Hotel; they also owned the furniture, furnishings, and equipment therein, Souders borrowed from the defendant bank about $8,300 on his half interest in the leasehold, but not on the furniture, and gave a deed of trust on said hotel. After one renewal, Souders was unable to pay this debt when it finally fell due, and the deed of trust on his one-half interest in the leasehold was foreclosed December 19, 1928, and the defendant Schiller bought it in for the benefit of the bank. (At the time of the trial, therefore, Schiller had no interest in the leasehold other than as a representative of the bank, and this is the reason the suit was dismissed as to him.)

After the foreclosure, the title to the property stood thus:

Lyons and Schiller (or rather the bank) owned the 99-year lease on the hotel, and Lyons and Souders owned the furniture and equipment therein, each having a one-half interest. Lyons' son, T. J. Lyons, Jr., had been operating the hotel for Souders and Lyons, Sr., and, after the foreclosure, he continued to operate the hotel for Lyons Sr., and the bank.

A careful examination and study of the record discloses the following:

Before the foreclosure, and therefore while Souders still owned a one-half interest in both the 99-year leasehold on the hotel and the furniture, he asked plaintiff, Darnall, to find a lessee for the one and a purchaser for the other. The two owners were losing money running the hotel through Lyons, Jr., and Souders had a conversation with defendant Lyons about selling the furniture and getting a purchaser for the leasehold. The most of his talk, he says, however, was with T. J. Lyons, Jr., and not with defendant Lyons. Souders says he never at any time talked with Lyons, Sr., defendant herein, about a commission on the sale of the leasehold as "that never entered my mind." No doubt they were not considering a sale of their 99-year leasehold, but they both were anxious to get a tenant to take a short term lease of the hotel in order to get an income from it; and a sale of the furniture could not well be made except to one who would take a lease on the hotel. They did not want to sacrifice the furniture, and at first asked $5,000 for it, but finally agreed to take $2,500 so as to obtain an income from the hotel. During the conversations with Lyons there was talk of getting a lessee for the hotel who would buy the furniture, and plaintiff told defendant Lyons about having Mr. Pugh (who later took a 5-year lease on the hotel and bought the furniture) as a prospect for this. When the conversation occurred wherein it was agreed to accept Pugh's offer of $2,500 for the furniture, Lyons said: "By taking that small amount on the furniture, we ought not to pay him (Plaintiff Darnall) a commission on the sale of it." It was known and understood, and talked about, that Pugh who was thinking of buying the furniture would not do so unless he took a lease on the hotel. Lyons never objected at any time to plaintiff's finding a man who would take a lease on the hotel and buy the furniture. By this time the interest of Souders in the hotel had been bought at foreclosure by Schiller for the bank.

Plaintiff continued his efforts to get Pugh to take more interest in the proposition of obtaining a lease and buying the furniture (which interest had slightly slackened at the time of the foreclosure), and Pugh again became interested and continued to be so, and to investigate, until a deal was closed with him for the purchase of the furniture at $2,500 and a lease of the hotel for five years at a rental of $400 per month. Before this occurred, however, Souders told the directors of the bank about the proposed deal with Pugh and told them he had a buyer for the furniture who would also take a lease on the hotel, and that in order to further the deal, and also to meet Lyons' objection to take so small a sum as $2,500 for the furniture, he (Souders) had agreed to and would pay the commission on the sale of the furniture. Souders says that he did not mention a commission on getting the lease; that he never told the bank about the plaintiff, Darnall. He knew, however, that Darnall was working on Pugh in an effort to make the deal, and he told the bank that Pugh would take the lease and buy the furniture. It may be that the bank was not specifically told about the plaintiff, Darnall, but from all of Souders' evidence it is manifest that the bank knew or must have known that some one had been requested to negotiate a deal involving the acquisition of a lease on the hotel as well as the purchase of the furniture. In order to effect a sale of the latter, the purchaser must obtain a lease on the former, and the bank was told that Souders, himself, would take care of the commission on the furniture, but nothing was said about the commission on the obtention of the lessee.

It also appears from Souders' evidence that prior to this, and while the negotiation with Pugh were still being carried on and the deal was pending, defendant Lyons had told Souders to have the furniture sold to some one who would take a lease on the hotel; that plaintiff, Darnall, first introduced Pugh to him (Souders) some two or three months before Souders' interest in the hotel was foreclosed in December, 1928, and though Pugh did not close any deal then, Darnall kept after him until he finally did renew his interest in the matter and at length closed the deal; and that he (Souders) told Lyons and the bank he would accept a low price on the furniture in order to help them get a good tenant.

Pugh's evidence is to the effect that his attention to the lease and hotel equipment was first called to his attention by plaintiff about eight months before he finally acquired the property; that he met Souders at plaintiff's office and there made an appointment with him to meet at the hotel the next day; that various negotiations were had, as a result of which and as a result of plaintiff having brought it to his attention and plaintiff's efforts thereafter, the deal was finally closed; that the negotiations always included his...