Giraldin Bros. Real Estate Co. v. Stiansen
| Decision Date | 02 September 1958 |
| Docket Number | No. 29995,29995 |
| Citation | 315 S.W.2d 636 |
| Court | Missouri Court of Appeals |
| Parties | GIRALDIN BROS. REAL ESTATE COMPANY (Plaintiff), Respondent, v. Aif C. STIANSEN and Webb & Knapp, Inc. (Defendants), Appellants. |
William H. Ferrell and Keefe, Schlafly, Griesedieck & Ferrell, St. Louis, for appellants.
Grand, Peper, Martin & Roudebush, Harold C. Gaebe, Jr., Harold B. Bamburg, St. Louis, for respondent.
This is a suit on a written contract for commissions alleged to be due on certain leases of space in buildings owned by the defendants. The trial was to the court. There was a finding and judgment for the plaintiff and the defendants prosecute this appeal.
The petition alleges that the defendants are the present owners of tract of land known as Hampton Village Plaza and some adjoining real estate located in the City of St. Louis. The area was being developed as a shopping center. This project was originally started by a corporation known as Boulevard Frontage Company. Buildings were being erected with the intention of leasing space in them. The plaintiff is in the real estate business and was engaged in procuring loans and leases as agent and broker. It is alleged that the Boulevard Frontage Company entered into the following contract with the plaintiff:
'This Agreement, made and entered into this 19th day of November, 1948, by and between Boulevard Frontage Company, a Missouri corporation, party of the first part, and Giraldin Bros. Real Estate Co., a Missouri corporation, party of the second part, Witnesseth:
'Whereas, the party of the first part is desirous of securing the services of the party of the second part in the leasing of the one remaining vacant store space (approximately 20' X 116') in building #3, known as No. 10 Hampton Village Plaza, as well as the two wings to be erected on either side of the central section now under lease to J. C. Penney and Co., which wings are each to have a frontage of approximately 65 feet and a depth of approximately 116 feet.
'Now, Therefore, it is agreed by the parties hereto as follows:
'First: The party of the first part hereby gives and grants to the party of the second part the sole and exclusive right and privilege to lease the space, above referred to, being the one vacant store space in Building #3, known as No. 10 Hampton Village Plaza, together with all of the space in the two wings of Building #4, hereafter to be erected.
'Second: This agreement shall be and remain in force and effect until all of the space, above referred to, has been leased.
'Third: In consideration of the exclusive rights, hereinabove granted, the party of the second part hereby accepts the exclusive right and privilege to lease the space above referred to.
'Fourth: The party of the first part agrees to pay to the party of the second part the following leasing commission:
'(a) One and one-half percent (1 1/2%) of the gross rental for the entire term of any lease, or extension thereof where option to renew is granted in the original lease, regardless of whether or not an outside broker or brokers participate in the making of said lease, it being understood and agreed that in the event an outside broker or brokers participate in the making of any lease, they are to be paid for their services by the party of the first part.
'(b) Said commissions are to be paid as follows:
'(1) The commission on the minimum or guaranteed portion of the rent to be paid by a tenant is to be paid to the party of the second part in sixty equal monthly installments during the first five years of the term of any lease; the commission on any extension, as hereinabove provided, shall be paid in the same manner.
'(2) The commission on the percentage rent to be paid by a tenant in addition to the minimum or guaranteed rent, which percentage rent is based on a certain percent of the gross amount of business done by the tenant, is to be paid by the party of the first part to the party of the second part annually within ten days after payment by the tenant.
'(3) The commission on percentage rent to be paid by a tenant where a lease is entered into entirely on a percentage basis is to be paid by the party of the first part to the party of the second part within ten days after payment by the tenant.
'Fifth: The commission due Giraldin Bros. Real Estate Co., party of the second part, is to be written into each lease (unless prohibited by the tenant) and the terms of payment, etc., specifically set out.
'Immediately upon the execution of the lease an instrument entitled 'Notice of Commission Due', properly executed and acknowledged by the parties hereto, is to be filed of record in the Office of the Recorder of Deeds for the City of St. Louis Missouri. Said 'Notice of Commission Due' shall describe the premises covered by the lease, set forth the commission due Giraldin Bros. Real Estate Co., refer to this Leasing Agreement and state that said Leasing Agreement is binding upon the parties thereto and upon their successors and assigns.
'Sixth: This agreement shall be binding upon the successors and assigns of both parties hereto.'
Both parties duly executed the contract.
It is alleged that it was the intention of the parties that the real estate should be 'security for the payment of sums due under said contract', and that the contract was duly recorded with the Recorder of Deeds for the City of St. Louis.
It is also alleged that a number of leases had been entered into and that the number of leases and the terms of them were unknown to plaintiff.
It is charged that the present owners had notice of the contract and that the plaintiff was at all times willing and able to 'secure and attempt to secure tenants under leases on the premises but was prevented' from so doing by the defendants.
The first count of the petition includes a prayer for $5,000 with a request that it be declared a lien upon the real estate. The same allegations are restated in the second count of the petition except for that portion which states that the real estate was to be security for the sums owing.
In the answers filed by the defendants they asserted that the contract was void for want of consideration. They also alleged that the plaintiff rendered no services of any kind in connection with the leasing of the buildings and did not procure, or in...
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