Gibson v. Pleasant Valley Development Co.

• Decision Date: 20 July 1928
• Citation: 8 S.W.2d 828,320 Mo. 828
• Parties: Dod G. Gibson v. Pleasant Valley Development Company and E. E. McKee, Plaintiffs in Error
• Court: Missouri Supreme Court

8 S.W.2d 828

320 Mo. 828

Dod G. Gibson v. Pleasant Valley Development Company and E. E. McKee, Plaintiffs in Error

Supreme Court of Missouri

July 20, 1928

Writ of Error to Jackson Circuit Court; Hon. Allen C Southern, Judge.

Reversed.

Cleary & Barnett and John R. James for plaintiffs in error.

(1) The evidence shows that plaintiff had no cause of action, and defendants' demurrers therefore should have been sustained. Under the evidence his employment was by and under contract Exhibit 1, and the services performed by him under said contract were to be performed in securing the sale of the property under the contract Exhibit 4. The plaintiff is limited in his right to recover a commission to these contracts, and he did not procure a purchaser under their terms. Young v. Cooperage Works, 259 Mo. 215; Cies v. Gale, 168 Mo.App. 282; Saunders v Hackley, 208 S.W. 67; Taylor v. Nat. Life Ins Co., 266 Mo. 283; Murphy v. Building Co., 155 Mo.App. 649; Hughes v. Thurman & Dodd, 164 Mo.App. 454; Burdett v. Parish, 185 Mo.App. 613; Vaughan v. O'Dell & Kleiner (Ark.), 242 S.W. 554; Geo. B. Loving Co. v. Cattle Co., 176 Mo. 330; Youngman v. Miller, 210 Mo.App. 151; La Force v. Washington University, 106 Mo.App. 517. (a) Commission payment was to be made only in the event the deal involving Exhibit 4 "is finally perfected," and to be paid only "as and when received" by McKee. (b) The sale was to be to a certain syndicate, and the syndicate never signed. (c) The contract could not be modified verbally to be made good with Elledge's signature only, because testimony to that effect would vary a written instrument, and the contract was one within the Statute of Frauds, and the entire contract therefore had to appear in writing. Since the written contract purported to be for a syndicate and not for Elledge personally, it could not, of course, without verbal explanation, possibly hold Elledge alone nor bind defendants to accept Elledge alone. (d) The contract fixed no definite obligation upon the syndicate even if the syndicate signed up. It was only a thirty days' option, with the provision that none of the parties thereto should be bound beyond that period of time, and the further provision that if the syndicate failed to comply with the terms of the contract at any time, then the contract should merely be void, and no one be liable to anybody else. That meant, therefore, that plaintiff had thirty days from November 12th to get this property sold and get the first $ 10,000 cash payment in. When he failed to do that, McKee and his company were released from any liability on that contract. (e) When it is observed that the sale contract (Exhibit 4) was only an option, it is then clearly understood why the commission contract was limited to complete performance, and the commission payments conditioned upon receipt of the money. (f) The parties, plaintiff and Elledge, voluntarily abandoned compliance with Exhibit 1. (g) Although plaintiff claimed interference by defendants, there is no evidence thereof, no evidence that they would not have welcomed performance of Exhibit 4, no evidence that defendants in any way prevented plaintiff from inducing either Elledge alone, or Elledge and the remainder of the syndicate, to perform the contract. (2) The amendment to the petition should not have been allowed. It substituted an entirely new cause of action. Plaintiff cannot sue upon one contract, and recover upon another. The court fell into the same error in overruling defendants' objections to testimony. Koons v. Car Co., 203 Mo. 227; Ingwerson v. Ry. Co., 205 Mo. 328; Amswick & Co. v. Kellum Co., 290 S.W. 616; Oaks v. Short, 297 S.W. 738; Michael v. Kennedy, 166 Mo.App. 462; Cole v. Armour, 154 Mo. 333; Bay v. Wank, 216 Mo.App. 153; Cudahy Packing Co. v. Ry. Co., 196 Mo.App. 528. (3) If in negotiating for the sale concluded by contract of April 23, 1919, it was contemplated by the parties, including plaintiff, that he was to be one of the purchasers, then he could not recover. Slusher v. Moore (Ky.), 258 S.W. 946.

Davis & Woodruff and John A. Hope for defendant in error.

(1) Under the commission contract introduced in evidence as Exhibit 1, the plaintiff was entitled to a reasonable time to produce a purchaser in the net sum of $ 475,000 to the defendants, and the execution of the commission contract by the defendants necessarily implied that they would give the plaintiff a fair chance to earn a commission and would not interfere until the plaintiff should have had a reasonable opportunity to sell at a profit to himself. The defendants did interfere by dealing directly with plaintiff's customer, thus making it impossible for plaintiff to sell on a basis that would give him a commission, and because of this wrongful interference of the defendants, plaintiff is entitled to recover the reasonable value of his services. Burdett v. Parish, 185 Mo.App. 605; Veatch v. Normann, 95 Mo.App. 500; Hogan v. Slade, 98 Mo.App. 44; Glover v. Henderson, 120 Mo. 367; Weisels-Gerhart Real Estate Co. v. Epstein, 157 Mo.App. 101; Hovey v. Aaron, 133 Mo.App. 573; Applegate v. Danciger, 2 S.W.2d 635; Beaty v. Muller, 236 S.W. 374. (2) There was no error in permitting the amendment to the second count of plaintiff's petition. The cause of action pleaded after the amendment was the same as that pleaded before, viz.: the right of plaintiff to recover, on account of the wrongful interference of defendants, the reasonable value of the services rendered by plaintiff. Sec. 1274, R. S. 1919; Carr v. Moss, 87 Mo. 447; Steward & Jackson v. Van Horne, 91 Mo.App. 647; Cotton Lumber Co. v. LaCross Lumber Co., 200 Mo.App. 7; McCormick v. Warman, 216 S.W. 330; Kissick v. Kissick, 279 S.W. 764.

OPINION

White, P. J.

The defendant in error brought suit in the Circuit Court of Jackson County to recover a real estate commission of one hundred thousand dollars. The petition, in two counts, alleges in the first count, that in October, 1918, the plaintiff, defendant in error here, entered into a written contract with the Pleasant Valley Development Company, through E. E. McKee, its president and general manager, whereby it agreed to pay him a commission of one hundred thousand dollars if he should secure a purchaser of a tract of land consisting of sixteen thousand acres known as the Iron Mountain Tract, for the price of $ 575,000. That the plaintiff fully performed his contract, secured one W. J. Elledge and his associates as purchasers at a price acceptable to the defendant, and said Elledge and associates purchased said tract; wherefore the plaintiff demanded the sum of one hundred thousand dollars.

The second count realleges the statements of the first count and proceeds:

"Plaintiff further alleges that he began the performance of said contract, which is herewith filed and marked 'Plaintiff's Exhibit A.' on the day of October, 1918, the date of the execution of said contract, but that after he had introduced said W. J. Elledge to said E. E. McKee and the officers of said Pleasant Valley Development Company and started negotiations with said Elledge for the sale of said 'Iron Mountain Tract' to him, the defendants insisted upon dealing directly with said W. J. Elledge and his associates and ignored the plaintiff and refused to permit plaintiff to assist defendants in negotiating the sale of said 'Iron Mountain Tract' to said W. J. Elledge and his associates and that defendants by their actions as aforesaid, would not permit plaintiff to proceed further with said contract; and plaintiff states that he was prevented by the defendants from completing the same."

He then states that the reasonable value of the services rendered by him was one hundred thousand dollars, for which he asks judgment.

The court, at some stage of the proceeding, ordered that the plaintiff take nothing by his first count, and the trial proceeded on the second count.

The contract which is the subject of the suit, is as follows:

"Plaintiff's Exhibit A.

"This memorandum of agreement made and entered into this -- day of October, 1918, by and between E. E. McKee, as Party of the First Part, and Dod G. Gibson, as party of the Second Part Witnesseth,

"That, Whereas, the said Party of the First Part has a tract of land comprising sixteen thousand (16,000) acres, more or less, known as the 'Iron Mountain Tract,' for sale, and the Second Party, Dod G. Gibson, has in view a purchaser thereof at five hundred seventy-five thousand dollars ($ 575,000).

"Now Therefore, it is agreed that if the Dod G. Gibson shall secure said purchaser at the said price of five hundred seventy-five thousand dollars ($ 575,000), and the said deal is finally perfected, the said Dod G. Gibson shall receive for his services in connection therewith the sum of one hundred thousand dollars ($ 100,000), which shall be paid as and when received by the said E. E. McKee. And,

"Whereas, the contract contemplates that two hundred thousand dollars ($ 200,000) in cash and deferred payments shall be paid to the said E. E. McKee under the contract of sale in the following amounts, to-wit: Ten thousand dollars ($ 10,000) cash and ten thousand dollars ($ 10,000) for four consecutive months thereafter, and fifteen thousand dollars ($ 15,000) for ten consecutive months following the said four months. The said one hundred thousand dollars ($ 100,000) commission shall be paid from this amount as follows:

"Five thousand dollars ($ 5000) of the first ten thousand dollars ($ 10,000) cash; five thousand dollars ($ 5000) per month for eleven (11) consecutive months thereafter: ten thousand dollars ($ 10,000) for the next consecutive month and fifteen thousand dollars ($ 15,000) for the two following months thereafter, making a total of one hundred thousand...