Francis v. Saleeby

• Decision Date: 20 September 1955
• Docket Number: No. 29193,29193
• Citation: 282 S.W.2d 167
• Court: Missouri Court of Appeals
• Parties: E. W. FRANCIS, d/b/a E. W. Francis & Company (Plaintiff), Respondent, v. John A. SALEEBY (Defendant), Appellant.

Page 167

282 S.W.2d 167

E. W. FRANCIS, d/b/a E. W. Francis & Company (Plaintiff), Respondent, v. John A. SALEEBY (Defendant), Appellant.

No. 29193.

St. Louis Court of Appeals, Missouri.

Sept. 20, 1955.

Motion for Rehearing or for Transfer to Supreme Court Denied

Oct. 13, 1955.

Ziercher & Tzinberg, Erwin Tzinberg, Clayton, for appellant.

Sidel & Sandweiss, Jerome W. Sidel, Jerome W. Sandweiss, St. Louis, for respondent.

JAMES D. CLEMENS, Special Judge.

Plaintiff, a real estate broker, had a verdict and judgment in his suit for a $1,500 real estate commission, and defendant land owner appeals.

Plaintiff's theory is that after defendant had listed his property for sale, plaintiff came forward with a ready, willing and able buyer, but that defendant then reneged. Defendant seeks to excuse himself from paying the commission because (1) he agreed with plaintiff to exchange his property rather than sell it, and (2) plaintiff was (a) planning to purchase the property for himself or (b) acting in a dual capacity for an undisclosed purchaser as well as for the defendant.

The facts: Plaintiff, through his salesman, W. M. Francis, sought out the defendant, soliciting employment in the sale of defendant's house and lot near the expanding business district of Clayton. Defendant set a net price of $28,500 and signed a five-day exclusive listing contract, in conventional form, showing a $30,000 gross selling price and agreeing to pay a 5% commission. Plaintiff went directly to a Mr. Charles Andrews, president of Garland, Incorporated, knowing that company wanted a parking lot at that location. Plaintiff offered defendant's property for sale at $30,000, which was in due course accepted. Mr. Andrews gave plaintiff his company's check for $1,000 as a down payment, but stated that his company wanted no publicity about the sale until it was actually completed. So it was agreed that W. M. Francis would act as a straw party for the buyer. Accordingly, plaintiff issued his own $1,000 cashier's check, payable to defendant, and prepared and signed a sales contract naming W. M. Francis as the buyer.

Within the five-day period, plaintiff presented the cashier's check and sales contract to defendant for execution. According to plaintiff, the defendant was then told that W. M. Francis was acting as a straw party for the buyer. And, according to plaintiff, defendant then said 'his wife in Brooklyn had a better deal', that 'he'd have to have time to think it over', and an appointment was made for a later date, which defendant failed to keep. Defendant's version of this meeting with plaintiff is rather nebulous. He says plaintiff wanted the signature of defendant's wife, and that he, the defendant, objected to the contract because there was some property to be traded. But, defendant then made no inquiry as to who the actual buyer was. Plaintiff kept trying to locate defendant, without success, and finally left the contract and check with defendant's son. This suit followed.

Defendant's answer admitted execution of the listing contract but claimed that it was given for the purpose of trading rather than selling his property. Further, defendant pleaded that plaintiff had not produced a buyer, but instead was trying to buy the property himself.

At the close of plaintiff's case, defendant by leave of Court amended his answer to plead dual agency of the plaintiff for both the defendant and an undisclosed buyer. After both parties had rested, and the instructions had been settled, the Court permitted defendant to re-open his case, to enable one of his attorneys to testify. The essence of this testimony was that about a week after the listing contract had expired the attorney called plaintiff into his office to find out the identity of the real purchaser and that plaintiff declined to reveal this information to him. Plaintiff and a mutual acquaintance who was present said the interview concerned defendant's liability for plaintiff's commission, and denied that the identity of the purchaser was requested or even discussed.

Defendant's motions for directed verdict were denied. This case went to the jury on plaintiff's instruction hypothesizing his theory. The Court instructed a verdict for defendant if plaintiff acted as agent for both defendant and the buyer, but by another instruction told the jury that if plaintiff acted as a straw party for the buyer in order to avoid public disclosure of its identity, such fact alone would not make plaintiff the buyer's agent.

Defendant first claims error in the Court's refusal to allow him to testify to certain conversations between him and plaintiff contemporaneous with the execution of the listing contract. Defendant pleaded that the listing contract was not the entire agreement, but was given for the sole purpose of authorizing plaintiff to exchange his property for other real estate and not for the sale of his property. Defendant did not plead fraud or mistake. He offered to testify that it was understood and intended by the parties that the only purpose of signing the listing contract was to 'arrange an exchange with Garland's between that piece of property and part of the property further out on Forsyth', and that it was not intended or understood 'to be a listing contract for the sale of said property on the open market.' The proffer was refused on the ground that it ran across the grain of the parol evidence rule. Defendant further objects to the trial Court's refusal of his instructions submitting the issue to the jury.

The defendant is trying to use parol evidence to escape the clutches of an unambiguous contract. In the absence of fraud or mistake this rarely can be done. State ex rel. and to Use of Alport v. Boyle-Pryor Constr. Co., 352 Mo. 1061, 180 S.W.2d 727, 730; Abrahams & Son Const. Co. v. Osterholm, Mo.App., 136 S.W.2d 86, loc. cit. 92. Defendant launches a three-pronged attack at the trial court's adherence to the parol evidence rule. First, defendant argues that he should have been permitted to testify that along with the listing contract there was a separate contemporaneous verbal contract for the exchange of his property, and cites the case of Mitchell v. Philippi, 359 Mo. 754, 223 S.W.2d 441, loc. cit. 444. There is such an exception to the parol evidence rule, 32 C.J.S., Evidence, Sec. 1003 j, p. 997, but it comes into play only when the verbal contract is separate from and not in conflict with the written contract. As said by Judge Ellison is Sunderland v. Hackney Mfg. Co., 192 Mo.App. 287, 181 S.W. 1192, 1193, and followed in Nickerson v. Whalen, Mo.App., 253 S.W.2d 502: '* * * The verbal collateral agreement must be independent and distinct from the written agreement, and must not be inconsistent with it. And it must not be so closely connected with the transaction as to form a part of it.' This same restraint upon this exception is expressed in defendant's cited case of Mitchell v. Philippi. A quick glance at the defendant's pleading and proffer will suffice to show that the barb of his attack is aimed at the very vitals of the listing contract. The proffered verbal agreement is not only not independent of the listing contract, but it is utterly inconsistent with it.

Secondly, the defendant having pleaded that the written listing contract was not the entire agreement between the parties, now argues that the proffered testimony should have been admitted to so show. That, standing alone, would bring him within another exception to the parol evidence...