Ferguson v. Overhead Door Co. of Springfield, Inc.

Decision Date16 March 1977
Docket NumberNo. 10001,10001
Citation549 S.W.2d 356
PartiesRay FERGUSON, Plaintiff-Appellant, v. OVERHEAD DOOR COMPANY OF SPRINGFIELD, INC., Defendant-Respondent.
CourtMissouri Court of Appeals

Herbert Douglas, Douglas, Douglas & Douglas, Neosho, B. H. Clampett, Daniel, Clampett, Ellis, Rittershouse & Dalton, Springfield, for plaintiff-appellant.

Donald E. Bonacker, Jerry L. Reynolds, Springfield, for defendant-respondent.

Before STONE, P. J., and HOGAN and FLANIGAN, JJ.

FLANIGAN, Judge.

Plaintiff Raymond Ferguson, a licensed real estate broker, brought this action to recover a commission allegedly due him from defendant Overhead Door Company of Springfield, Inc., by reason of a sale by defendant to Jack Webb of an improved lot (5204 Range Line) in Joplin, Missouri. The sale price was $22,000 and the petition sought a six percent commission of $1,320.

As a defense to the petition, and as the basis for its counterclaim for actual and punitive damages, defendant alleged that plaintiff failed to disclose the existence of a higher offer ($25,500), that offer being available at the time defendant, without knowledge of its existence, accepted Webb's $22,000 offer on November 30, 1973.

In February 1975 the case was tried to a jury which denied plaintiff relief on his petition and awarded defendant $3,500 actual damages and $5,000 punitive damages on its counterclaim. Plaintiff appeals.

In general plaintiff's points on appeal lie in three areas: (a) The trial court erred in permitting defendant to introduce Exhibit F, a written statement which defendant's witness Ralph Hamlin gave defendant's attorney on December 3, 1973; (b) Instructions 4 and 6, offered by defendant, were erroneous for several reasons; (c) The evidence is insufficient to support the award of punitive damages.

In the order of their appearance in the following summary, the persons involved are:

1. Ferguson plaintiff Raymond Ferguson;

2. Datema Pete Datema, president of the corporate defendant, whose office is located in Springfield, Missouri. Datema represented the defendant throughout the described dealings and his authority so to do is not questioned;

3. Beal Bob Beal, a business associate of Carroll Dale;

4. Dale Carroll Dale, a bidder on the lot;

5. Hamlin Ralph Hamlin, a self-employed Joplin real estate broker;

6. Dykes Jim Dykes, a real estate salesman in the employ of Ferguson;

7. Webb Jack Webb, the ultimate buyer of the lot.

November 23, 1973: In a telephone conversation Ferguson and Datema agreed that Ferguson would have "an exclusive listing" to sell the lot for a commission of six percent, the listing price to be $27,500. Ferguson, who had had two prior listings of the lot from Datema, placed his real estate sign on it.

November 24, 1973: Beal and Dale talked with each other about buying the lot.

November 25, 1973: Dale telephoned Hamlin, whom Dale had previously used as his agent in real estate matters, and asked Hamlin to "see about buying the property for Dale."

November 26, 1973: (1) Ferguson mailed Datema an "exclusive listing" form confirming the oral arrangements of November 23. This form was never signed by Datema; (2) Hamlin telephoned Ferguson's office and talked to Dykes; Dykes said Ferguson would be happy to cooperate with Hamlin on a sale of the lot; Hamlin requested the key to the building on the lot and Dykes, who did not then have the key, agreed to obtain one for Hamlin; (3) Hamlin "showed the lot" to Dale, the showing being limited to the outside because no key was available.

November 27, 1973: Both in the morning and in the afternoon Hamlin telephoned Dykes to see if Dykes had obtained the key, but Dykes had not. Hamlin "said something about his prospect" to Dykes but did not identify the prospect. Dale crawled into the building on the lot and inspected it.

November 28, 1973: (1) Hamlin called Dykes and renewed the request for the key; (2) Ferguson talked with Webb; Webb made a verbal offer of $22,000 and gave Ferguson a $500 earnest money down payment; the down payment was in cash and not by check; (3) Ferguson telephoned Datema and informed Datema of Webb's $22,000 offer. Datema said he would have to check with his associates and call back; (4) Hamlin called Dykes about the key; (5) Datema called Ferguson late in the afternoon and told him the Webb offer was acceptable.

November 29, 1973: (1) Dale (and his wife) signed a written contract on a form provided by Hamlin. The contract called for a purchase price of $25,500 and a real estate commission of $1,530 to be paid Hamlin "in cooperation with Raymond Ferguson Agency"; (2) Hamlin called Dykes about the key; (3) In the afternoon Hamlin telephoned Ferguson's office and was informed Dykes was gone. Thereafter Hamlin tried to reach Ferguson at his office "every 30 minutes" and, after 6:30 p. m., repeatedly tried to reach Ferguson at his home; (4) Beal and Dale went to Ferguson's office at 7 p. m. and told Ferguson's secretary they wanted to talk with Ferguson; (5) Ferguson had a telephone conversation with Beal in which Beal said that he, Beal, was not interested in buying the lot. Ferguson tried, without success, to telephone Dale, Ferguson then being of the opinion that Dale was a prospective buyer; (6) At 10 p. m. Hamlin had a telephone conversation with Ferguson. The particulars of this conversation, which involve the admissibility of Exhibit F, will be treated later.

November 30, 1973: (1) Ferguson tried without success to reach Dale by telephone; (2) Ferguson dictated the Webb contract and it was typed on a form provided by Ferguson, calling for a sale of the lot to Webb for $22,000 and a commission to Ferguson of $1,320; (3) Webb went to Ferguson's office and signed the Webb contract; (4) Ferguson went to Springfield and talked with Datema. Ferguson admitted that he told Datema that, other than the Webb contract, "I had no firm offers, people discussed it but no money up, no prospective buyers"; (5) Datema, for defendant, signed the Webb contract late Friday afternoon.

December 3, 1973: (1) Datema telephoned Ferguson and said he "was dissatisfied because there had been another offer"; (2) Datema, for defendant, hired an attorney who sent a letter to Ferguson "terminating Ferguson's authority"; (3) Defendant's attorney interviewed Hamlin and obtained his written statement, "Exhibit F."

In February 1974 the Webb contract was carried out except that Ferguson was not paid his commission.

The first point to be considered is whether the trial court erred in permitting the introduction into evidence of defendant's Exhibit F, the body of which was in the attorney's handwriting.

At the trial Hamlin testified as a witness for defendant. In most respects his trial testimony was consistent with the contents of Exhibit F. The major difference between Exhibit F and the trial testimony of Hamlin pertains to the contents of the telephone conversation which Hamlin had with Ferguson at 10 p. m. on November 29. According to Exhibit F, Hamlin told Ferguson that he, Hamlin, "had a contract for $25,500 to buy the property." If Exhibit F was in fact inadmissible, the rest of the record falls short of containing that item of evidence.

Plaintiff's first witness was Ferguson himself. On direct examination he testified that at no time prior to the signing of the Webb contract did he have any knowledge "of any offer of any amount from anyone other than Webb."

On cross examination Ferguson testified that he did not know that Hamlin was showing the lot or that Hamlin had a prospective buyer. He did, however, admit having the telephone conversation with Hamlin on the evening of November 29. When asked if Hamlin told him at that time that Hamlin had a prospective purchaser, Ferguson's nonresponsive answer was "the conversation was very short." Pressed by defense counsel, Ferguson admitted that he did know Hamlin was showing the lot and that Ferguson was mad at Hamlin for doing so.

Ferguson also made the following admissions: he felt an obligation to Datema to get the highest price available; he had a duty "to tell my client everything I knew about the sale that might influence his decision on whether or not to sell"; if anyone else was interested in buying, it was his duty to transmit that information to the seller; he told Datema, before Datema signed the Webb contract, that he had received "no firm offers, people discussed it but no money up or firm offer that I could hope to tell him we might have a prospective buyer"; he did not tell Datema about the telephone conversation with Hamlin; although he was of the opinion that Dale was a prospective buyer, and he had failed in his attempts to reach Dale, he did not tell Datema about Dale or those attempts; if the Dale "deal" had gone through, defendant would have received, for the lot, $3,500 more than it received on the Webb contract; Ferguson's commission under the Webb contract was about $500 more than it would have been if the Dale deal had gone through because, in the latter event, Hamlin would have been entitled to a portion of the commission.

On redirect examination Ferguson stated that Hamlin did not, in the telephone conversation, reveal "the name of any prospect or any offer he might have."

As part of its case defendant called Hamlin as a witness. With regard to the telephone conversation, Hamlin testified that Ferguson expressed outrage that Hamlin was showing the lot without Ferguson's permission. Hamlin said that caught him by surprise "and I don't recall the next few words of the conversation. The last I can recall is I said I had a party that was interested in the property which I thought would be a good deal . . . I felt from the indication and the tone of (Ferguson's) voice that and I was tired and did not want to fight any longer . . . and I just said, 'well, if your deal does not...

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