Glassman v. Fainberg

• Decision Date: 03 March 1931
• Docket Number: No. 21405.,21405.
• Citation: 35 S.W.2d 950
• Parties: GLASSMAN v. FAINBERG et ux.
• Court: Missouri Court of Appeals

35 S.W.2d 950

GLASSMAN v. FAINBERG et ux.

No. 21405.

St. Louis Court of Appeals. Missouri.

March 3, 1931.

Rehearing Denied March 19, 1931.

Appeal from Circuit Court, St. Louis County; Amandus Brackman, Judge.

"Not to be officially published."

Action by Samuel Glassman, doing business as the Glassman Real Estate Company, against R. Fainberg and wife. Judgment for plaintiff, and defendants appeal.

Affirmed.

Harry Gershenson and William H. Allen, both of St. Louis, for appellants.

Daniel Bartlett, of St. Louis, for respondent.

HAID, P. J.

This is an appeal from a verdict and judgment in favor of plaintiff for a commission upon the sale of real estate owned by the defendants.

The petition alleged in effect that plaintiff was employed by the defendants as their agent to effect a sale of certain real estate; that defendants agreed to pay him a commission of 5 per cent. of the purchase price; that thereafter he rendered services which were the efficient, procuring, and inducing cause of the sale that was made; and that the sale was made at a price of $12,500.

The answer was a general denial.

At the close of the plaintiff's case the defendants offered a joint instruction in the nature of a demurrer to the evidence, and at the close of the whole case they offered a like instruction, and there was also offered a separate instruction in behalf of the defendant Bessie Fainberg.

Witness Louis J. Geffen for the plaintiff testified that between January, 1928, and January, 1929, he was employed by the plaintiff; that he had known both the defendants for about ten years and had known Max Saldofsky and his wife about five or six years; that in October, 1928, he met Mr. Fainberg on the street and told him he was in the real estate business; that Mr. Fainberg asked him: "Why don't you try to sell that house we own on Easton Avenue? * * * I have been trying to sell it; it has been vacant for a long time; we want to get rid of it; just eating me up." That witness informed Mr. Fainberg that the commission for the sale would be 5 per cent., to which Mr. Fainberg agreed; that he suggested that Mr. Fainberg go to the office of plaintiff but the latter replied that he was busy and would come up later; that witness made a memorandum of the information Fainberg gave him, then Fainberg told him he knew some one (Saldofsky) that wanted the property and if witness would go to him he could make a sale but not to tell Saldofsky that Fainberg sent him; that witness went to Mr. Saldofsky; that Mr. Fainberg said he would require $12,500; that there was a first deed of trust of $6,000 and a second deed of trust of $2,000 upon the property; that he saw Saldofsky the following day, and the latter stated he was interested in the store but that he did not have enough money to pay him $4,500 in cash, but was willing to give him $2,000 cash and a mortgage for the balance; that he conveyed this information to Fainberg who said, "Well, we'll see; we will wait"; that subsequently he went to Saldofsky and told him if he wanted to buy the property the agent would work out a workable plan provided Saldofsky would come to the office, sign a contract; that Saldofsky did appear, signed the contract, but did not have a check with him, but witness went to Saldofsky's store the following day and was given a check for $500 as earnest money. The contract thus signed was executed in triplicate, dated October 17, 1928, two copies thereof were signed by Saldofsky covering earnest money of $500, being part consideration of the property involved at 5753 Easton avenue, sold to Sarah Saldofsky, for the total sum of $12,500 payable $2,000 in cash, including the earnest money, and the purchaser to assume a first deed of trust for $6,000 with interest at 6 per cent., a second deed of trust in the sum of $2,000, payable $100 a month with interest at 6 per cent., and a third deed of trust for $2,500 payable $25 per month and interest for thirteen months, and $125 per month thereafter for thirteen months, balance due the twenty-seventh month; that one of these contracts was signed by the agent and given to Saldofsky as his receipt; that on the following Monday he called up Fainberg, told him he had the contract and check for the property signed by Saldofsky, and was advised by the latter to call at his place of business at 1 o'clock; that witness went there at the time appointed, Fainberg's wife met him, and when informed that witness had an appointment with Fainberg she advised him that her husband went out collecting but was liable to be back any minute; that he remained there until 5 o'clock; that in the meantime he showed Mrs. Fainberg the contract and check and she asked, "Oh, do we have to pay a commission on that?" and witness informed her that she had bought property before and knew that the one that sells pays the commission; that next morning he called up Fainberg and asked why he didn't keep his appointment, and Fainberg informed him that he need not bother, that the property had been leased for a year; that the next day he went to Saldofsky and tendered back the check and told him the store was leased, but the latter said nothing about it; the next day witness passed the property, saw Saldofsky working in the building, asked him what he did, whether he leased the place, and Saldofsky replied in the affirmative; that he had no further conversation with Fainberg or with Saldofsky. On cross-examination he testified that he first met Mr. Fainberg around the first week in October; that he did not take a contract from Fainberg because it was not the custom of his employers to take contracts from any one. Asked how much cash Fainberg wanted, the witness answered $4,500. Further on he stated that Fainberg asked him to get $4,500, whether it was in cash or otherwise was not stated; that the contract with Saldofsky was never accepted by Fainberg.

Plaintiff offered in evidence, in addition to the contract of sale heretofore mentioned, a certified copy of a general warranty deed dated November 22, 1928, from Bessie Fainberg and Reuben Fainberg, her husband, conveying the aforementioned property to Sarah Saldofsky for the consideration of $100 and other valuable considerations, specifying that Sarah Saldofsky assumed the first deed of trust for $6,000, an unpaid balance on the second deed of trust in the sum of $2,500.

Plaintiff also offered in evidence certified copy of deed of trust dated November 22, 1928, from Sarah Saldofsky and husband to the trustee for Bessie Fainberg upon the same property, securing payment of twelve principal notes for $25 and interest, from one to twelve months after date, and one principal note for $1,206 due thirteen months after date; this deed being made subject to the first deed of trust for $6,000 and a second deed of trust of $2,500, then of record.

Plaintiff also offered in evidence contract of sale dated October 22, 1928, executed by Max Saldofsky as purchaser and accepted by R. Fainberg and Bessie Fainberg covering the same property whereby the purchaser agreed to pay $12,500 for the property, $2,000 in cash (less $250 earnest money deposited at the time of execution of the contract), two personal notes for $250 due three and six months after date with 6 per cent. interest, and the purchaser to assume a first deed of trust for...