Gillette v. Laederich

• Decision Date: 12 June 1922
• Docket Number: No. 14387.,14387.
• Parties: GILLETTE v. LAEDERICH.
• Court: Missouri Court of Appeals

242 S.W. 112

GILLETTE v. LAEDERICH.

No. 14387.

Kansas City Court of Appeals. Missouri.

June 12, 1922.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

"Not to be officially published."

Action by Fred B. Gillette against Victor H. Laederich. Verdict and judgment for defendant, and from an order sustaining plaintiff's motion for a new trial, defendant appeals. Affirmed.

Grant I. Rosenzweig and Samuel M. Hutchison, both of Kansas City, for appellant.

Hogsett & Boyle, of Kansas City, for respondent.

ARNOLD, J.

This is an action by plaintiff against defendant for a commission of $6,500 upon a real estate transaction in the nature of exchange of properties. Plaintiff is a real estate agent and member of the Real Estate Exchange of Kansas City, Mo. Defendant is a resident of Kansas City, and was the owner of the Victor Building, located at the northwest corner of Tenth and Main streets in said city.

Some time in the spring of 1919 one Welden Crow, a real estate agent representing one R. L. Winter, of Kansas City, suggested to plaintiff that Mr. Winter might be interested in the exchange of some properties which he owned for the Victor Building. Plaintiff thereupon took the matter up with defendant, and there were some offers, tentative or positive, made through plaintiff and Crow as the agents of the two owners. The parties are not agreed as to the exact purport and intent of these offers, and the evidence relative thereto was more or less conflicting. It is urged by plaintiff, and charged in the petition, that on or about August 4, 1919, he procured a purchaser who was ready, able and willing to accept defendant's proposition in writing for the exchange of said Victor Building, and to convey and deliver to defendant therefor certain real properties, and that the total value of the real property and mortgages secured to defendant in the said exchange was $260,000. The prayer was for 2½ per cent. of this amount as commission.

The second amended answer was, first, a general denial, and as further answer and special defense it was charged:

That "in any negotiations respecting the matter set out in plaintiff's petition one Crow was agent for R. L. Winter, under contract wherein Winter was to pay Crow a commission of $1,500, more or less; that an agreement was made between plaintiff and Crow whereby any commission received by plaintiff Gillette from Laederich was to be shared and divided in such manner that Crow was to receive a substantial part thereof from Gillette, and so that any commissions received by Gillette and Crow should be made approximately equal to each other between themselves; that this agreement between Gillette and Crow was made without the knowledge or consent of Laederich and also without the knowledge or consent of Winter; and that by reason of such agreement plaintiff is barred and estopped from asserting the claim made by him in this case."

In this state of the pleadings the cause went to trial to a jury.

The verdict and judgment were for defendant. In due time plaintiff filed motion for a new trial and in arrest, which said motion was sustained upon the stated ground that there was error in giving instruction No. 2 for defendant. From the order of the court sustaining said motion for a new trial defendant appeals.

Said instruction reads:

"The court instructs the jury that by greater weight of credible evidence is meant all of the evidence in the case, including facts and circumstances pertaining thereto. It is the province of the jury to give to testimony and to facts and circumstances such weight as in the mind of the jury the same may appear entitled to. Any claim of the plaintiff not so proven by the greater weight of credible evidence, it will be the duty of the jury to resolve in favor of Laederich."

The particular part of this instruction to which plaintiff's objection was directed is as follows:

"* * * By the greater weight of credible evidence is meant all of the evidence in the case, including facts and circumstances pertaining thereto."

This instruction supplements part of instruction No. 1 for defendant which reads, in part, as follows:

"* * * Unless Gillette has shown to the satisfaction of the jury by the greater weight of credible evidence in the case that Laederich authorized or approved each and every one of the different parts or features of the Winter paper, it will be the duty of the jury to return a verdict for Laederich."

This instruction, having incorporated within its terms the words "the greater weight of credible evidence in the case," made it necessary for the court to define the words. In an effort to do this, instruction No. 2 for defendant was given, including the words objected to by plaintiff. Timely objection to the giving of said instruction was made by plaintiff, and exception thereto saved. The question is therefore properly before us for review. Other than the alleged error in this instruction, the court assigns no reason for sustaining the motion for a new trial. Therefore a solution" of the question of whether this instruction was erroneous is determinative of this appeal, and we shall accordingly limit our review to this one point.

Defendant states the use of the words "greater weight of the credible evidence" in his instruction No. 1 was proper, as applied to civil cases, and in this we think he is right. As we...