Fisher & Co. Real-Estate Co. v. Staed Realty Co.

• Decision Date: 12 February 1901
• Citation: 159 Mo. 562,62 S.W. 443
• Court: Missouri Supreme Court
• Parties: FISHER & CO. REAL-ESTATE CO. v. STAED REALTY CO.

62 S.W. 443

159 Mo. 562

FISHER & CO. REAL-ESTATE CO. v. STAED REALTY CO.

Supreme Court of Missouri, Division No. 1.

February 12, 1901.

BROKERS — REAL-ESTATE AGENTS — COMMISSION — PLEADING — VARIANCE — OBJECTION — AFFIDAVIT — APPEAL — CONFLICTING EVIDENCE — REVIEW.

1. Plaintiff sued for commissions for selling real estate, alleging that it was to have a percentage on the price at which the property was sold, less the amount paid to third parties, who made the sale, to which there was a general denial. The proof showed that defendant employed plaintiff to sell the real estate, agreeing to give it a percentage on the sum realized therefrom. Plaintiff agreed with other parties to give them a certain sum of the commission for selling the property, and introduced such parties to defendant, at which time the terms of sale, the incumbrances on the property, and the commissions were fully discussed. Such third parties procured a purchaser at a figure lower than that originally fixed; and defendant, after claiming that the sale at such price was to be net, paid them the amount agreed on. Held, that there was no variance between the issues and the proof.

2. Where defendant did not make an objection in the trial court to the introduction of evidence on the ground that there was a variance between the allegations and the proof, and show in what respect he had been misled thereby by affidavit, as required by Rev. St. 1889, § 2096, it is too late to make such objection on appeal.

3. Where the evidence was conflicting, but the great preponderance thereof and all the circumstances were in favor of plaintiff, a judgment in its favor will not be disturbed on appeal.

Appeal from St. Louis circuit court; P. R. Flitcraft, Judge.

Action by the Fisher & Co. Real-Estate Company against the Staed Realty Company to recover commissions on a sale of property. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

T. J. Rowe, for appellant. Lyon & Swarts, for respondent.

MARSHALL, J.

The defendant owned the Laclede Building, corner Fourth and Olive streets, St. Louis. There were three mortgages on it for $100,000, $175,000, and $40,000, respectively. The first mortgage bore 5 per cent. interest, and the other two 6 per cent. interest. About May or June, 1896, the defendant employed the plaintiff to sell the property, fixing the selling price at $375,000, and agreed to pay plaintiff, who was engaged in the real-estate business, 2½ per cent. commission on the sum realized from the sale, for its services. The plaintiff endeavored to sell, sent out some 200 circular letters to capitalists, and personally tried to effect a sale to various persons who were able to buy. The money market was very tight at that time, and the property could not be sold at that price. The defendant became very anxious about the matter as the summer progressed, and from time to time reduced his selling price to $330,000 net, the purchaser to pay commissions. In August or September the plaintiff arranged with F. H. & C. B. Gerhart, who were also real-estate agents in St. Louis, to assist in selling the property, agreeing, if they found a purchaser, to allow them $5,000 out of the commission of 2½ per cent. Plaintiff informed defendant of this arrangement, and introduced P. M. Staed, the president of defendant, to the Gerharts, who were not previously acquainted. The terms of sale, the incumbrances, and the above-stated arrangement as to commissions were fully discussed between the parties at that time, and were stated to be as hereinbefore set out. At that time defendant reduced the selling price from $375,000 to $350,000. Prior to the election in November no sale was effected, although defendant reduced the selling price to $330,000 net, the purchaser to pay commissions. Immediately after the election the defendant raised the selling price to $345,000. The Gerharts succeeded in getting an offer for $335,000, the defendant to reduce the interest on the outstanding incumbrances to 5 per cent., and to pay commissions. The defendant said the election had changed the condition of the money market, and so refused to sell at that price. Finally defendant fixed his selling price at $340,000, the arrangement as to interest and commissions to be as last stated. So, on the 12th day of November, 1896, the Gerharts took from defendant a three-days option on these terms. The option, though taken in the name of the Gerharts, was really for the true purchaser, James T. Drummond. Within the three days Drummond paid $5,000 earnest money. When it came to closing up the transaction, the defendant wanted the $340,000 net, and declined to pay any commission; but, when the Gerharts would not go further with the matter, or turn over the $5,000 earnest money, unless their promised commission of $5,000 was secured, the defendant entered into a written agreement to pay their said commissions. The defendant refused to pay, and has never paid, plaintiff anything whatever. The sale to Drummond was consummated for $340,000; Drummond assuming the deeds of trust as a part of the purchase price, and the defendant allowing him about $3,200, the difference between 6 and 5 per cent., the rate of interest on a part of the incumbrances. The Gerharts were paid their commission of $5,000. The defendant refused to pay the plaintiff anything. The plaintiff then sued for $3,500, the balance of the 2½ per cent. commission on $340,000, aggregating $8,500, less the $5,000 paid the Gerharts. The petition is upon the express contract. The answer is a general denial. There is no substantial conflict in the evidence. The defendant admits the original contract with defendant; admits he was introduced to...