Gardner v. Eldridge
| Decision Date | 07 July 1910 |
| Citation | 130 S.W. 403,149 Mo.App. 210 |
| Parties | JAMES T. GARDNER, Respondent, v. WILLIAM T. ELDRIDGE, Appellant |
| Court | Missouri Court of Appeals |
Appeal from City of St. Louis Circuit Court.--Hon. Warwick Hough Judge.
Judgment affirmed.
Henry S. Caulfield and Franklin Miller for appellant.
(1) The broker must be the procuring cause of the contract on which he depends for his recovery. It will not suffice for his act to be one of a chain of causes producing the contract; for it must be the procuring cause or, as it has been said, it must be the causa causans. Ramsey v. West, 31 Mo.App 676; Mead v. Arnold, 131 Mo.App. 222; Newton v Richie, 75 Iowa 91; 23 Am. and Eng. Ency. Law (2 Ed.), 911. (2) The court erred in admitting and permitting to be read to the jury over the objections and exceptions of defendant, the typewritten statement, dictated by witness Brown, and, in particular, that part relating to the alleged statement of witness Lane to Brown concerning the value of plaintiff's assistance in making the sale. Kitchen v. Railroad, 59 Mo. 518; Hutchins v. Railroad, 97 Mo.App. 552; Fanny v. State, 6 Mo. 122; Callan v. McDaniel, 72 Ala. 105; 1 Wharton Law of Evidence, sec. 558; 1 Greenleaf's Evidence (12 Ed.), 511; State v. Taylor, 134 Mo. 154; Scharff v. Grossman, 59 Mo.App. 203; Harper v. Railroad, 47 Mo. 581; McFadin v. Catron, 120 Mo. 263; Sweeney v. Railway, 150 Mo. 400; 1 Greenleaf on Evidence (12 Ed.), sec. 449. (3) For plaintiff to recover for negotiating the sale he must show an employment to negotiate the sale. McCormack v. Herboth, 115 Mo.App. 193; Northrup v. Diggs, 128 Mo.App. 217; Bassford v. West, 124 Mo.App. 248. (4) There is a decided distinction in legal effect between a general employment to negotiate a sale and an employment to assist in that respect. Campbell v. Vanstone, 73 Mo.App. 84; Hawkins v. Chandler, 8 Houst. (Del.) 434; Lyon v. Valentine, 33 Barb. (N.Y.) 271; Longstreth v. Long, 6 Phila. 179. (5) But if one were employed merely to assist another in the negotiations, merely to play a subordinate part, then the commission idea is absent, and the actual work done and the time employed must be considered by the jury. Hawkins v. Chandler, 8 Houst. (Del.) 434. (6) All the cases in Missouri which recognize the right of an agent to recover by reason of having introduced or disclosed the name of the person who purchased are based upon the fact that in each such case the sale was due to such introduction or disclosure and would, probably not otherwise have occurred. Tyler v. Parr, 52 Mo. 249; Smith v. Truitt, 107 Mo.App. 1; Merton v. J. I. Case Co., 99 Mo.App. 630. (7) There is a decided distinction between a general employment to negotiate a sale and an employment to assist in that respect. Bassford v. West, 124 Mo.App. 257; Lyon v. Valentine, 33 Barb. (N.Y.) 271.
Bishop & Cobbs and Harry G. Colson for respondent.
(1) Instruction No. 1 was clearly justified by the facts in every particular. There was evidence before the jury on every hypothesis contained in it. Besides, all the instructions must be taken together and if, when taken together, they submit the issues fairly to the jury, no reversible error has been committed. Owen v. Railroad, 95 Mo. 181; Anderson v. Railroad, 161 Mo. 427; King v. King, 155 Mo. 425. (2) None of the errors complained of could have changed the result. This court will not reverse a judgment unless the errors complained of are really errors, materially affecting the merits of the action. Revised Statutes 1899, sec. 865. Whether those errors are in the admission of evidence. Gardner v. Railroad, 135 Mo. 100; or in giving instructions to the jury. Greer v. Bank, 128 Mo. 575; Barkley v. Cemetery Assn. , 153 Mo. 317.
Action for compensation for assisting in the sale of certain railroad stock. The petition alleged that on July 25, 1903, defendant employed plaintiff to assist in the sale of the capital stock of what was known as the Cane Belt Railroad in Texas, and had stated to him that if he would assist him and the sale should be made that he would be more than liberal and generous in paying and compensating plaintiff for his services in that behalf; that plaintiff in pursuance of this employment undertook, to and, did, procure a purchaser and that as a result of his efforts a sale of the stock was made to the Santa Fe Railroad for the sum of eight hundred and fifty thousand dollars, and that his services in that respect were worth fifty thousand dollars, for which he asks judgment. The answer was a general denial.
There was a trial by jury, verdict for plaintiff for seven thousand five hundred dollars, and defendant has appealed. The errors insisted upon in this court relate to the action of the court in admitting and rejecting testimony, and in giving and refusing instructions.
It appears from the evidence that the Cane Belt Railroad Company was a Texas corporation with a capital stock of one hundred thousand dollars and had built and owned a railroad one hundred miles long between Sealy and Matagorda in Texas, with small branches. That in the building of this road the Lincoln Trust Company of Saint Louis had advanced large sums of money and seventy-five per cent of the stock of the road had been pledged to the Lincoln Trust Company as collateral security for this debt. There was also a bonded indebtedness of seven hundred and fifty thousand dollars on the road. The twenty-five percent of the stock not pledged to the Lincoln Trust Company was owned by defendant, Jonathan Lane and one Beedecker in equal parts. Lane was president and general counsel and defendant Eldridge was vice-president and general manager of the Cane Belt road. The Gulf, Colorado and Santa Fe Railroad which was the Texas portion of the Santa Fe System, ran near the Sealy terminus of the Cane Belt road. Colonel Lucius J. Polk was vice-president of the Gulf, Colorado and Santa Fe; E. W. Ripley was the president of the Santa Fe, and Paul Morton was the second vice-president of the Santa Fe. Plaintiff had an office in Chicago and was in the general railway equipment business. Defendant Eldridge had purchased cars from him for use upon the Cane Belt road and plaintiff and defendant were close friends. Plaintiff's testimony tended to show that defendant came to his office in Chicago about July 25, 1903, and stated to him that the Lincoln Trust Company was threatening to sell the stock of the Cane Belt road held by them, and that there was urgent necessity for making disposition of the stock of the Cane Belt road in order to prevent loss to the defendant, and wished to engage plaintiff to assist in finding a purchaser for this stock and promised that he would be more than liberal in compensating him for his services in case a sale was made; that in pursuance of this agreement he undertook to assist defendant in the sale of this stock; that he then and there called in Tom Brown who was chief clerk to Paul Morton, vice-president of the Santa Fe, introduced him to defendant and it was there arranged that Brown should try to secure a meeting between defendant and Lane on the one hand, and Ripley and Morton on the other with a view of trying to sell this stock of the Cane Belt road to the Santa Fe; that defendant stated that the property had been previously offered to the Santa Fe and they had refused to purchase. That through Brown the meeting was finally arranged and that a sale was consummated on the 7th of November, 1903, for the sum of eight hundred and fifty thousand dollars. That afterward plaintiff had demanded pay for his services and had been refused, but that defendant had, at different times, promised to settle and to pay plaintiff but that no amount had ever been agreed upon between them, but that on January 30, 1904, defendant had written plaintiff a letter in which he offered to pay seven thousand five hundred dollars. Plaintiff had testified that the value of his services was fifty thousand dollars and Theodore P. Shonts had testified on plaintiff's behalf that a reasonable compensation would be five per cent of the price for which the stock sold. This, together with the letter of defendant, was all the evidence on the part of plaintiff relating to the value of plaintiff's services.
Defendant denied any contract of employment between himself and plaintiff, and also denied having made several statements which plaintiff had testified that he had made, and further testified that he understood that what plaintiff did was done as a matter of friendship and without expectation of compensation, but that plaintiff had said to him that Brown was a friend of his and if he could he would be pleased if defendant would pay him something that he might make a present of it to Brown. Defendant also testified that at one time plaintiff and Brown had met him in Texas, and that plaintiff had then insisted that defendant settle the question of compensation with Brown and then said that he himself expected nothing. That defendant then in conversation with Brown had offered him seven thousand five hundred dollars. The further testimony on behalf of defendant tended to show that the sale of the stock was not brought about through the efforts of plaintiff.
The errors complained of in relation to the admission of testimony will be noticed first. Defendant placed upon the witness stand one Mr. Moody who was asked to state what part he had taken in the sale of the Cane Belt Railroad to the Santa Fe. Upon objection of plaintiff he was not permitted to answer. This is assigned as error. The defendant did not state to the court what he expected to prove by this witness and, hence, the court was not informed whether or not the testimony, if given, would be material and defendant having failed to inform ...
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