Good v. Erker

• Decision Date: 04 February 1913
• Citation: 153 S.W. 556
• Parties: GOOD v. ERKER.
• Court: Missouri Court of Appeals

153 S.W. 556

GOOD v. ERKER.

St. Louis Court of Appeals. Missouri.

February 4, 1913.

1. CONTRACTS (§ 147) — CONSTRUCTION — INTENTION OF PARTIES.

The intention of the parties to a contract controls its interpretation.

2. CONTRACTS (§ 147) — CONSTRUCTION — INTENTION OF PARTIES.

The intention of the parties to a contract free from ambiguity must be gathered from the language of the instrument itself.

3. CONTRACTS (§ 152)—CONSTRUCTION—MEANING OF WORDS.

Words in a contract are presumptively used in their usual and ordinary sense, and, in the absence of anything to indicate a contrary intention, the words will be so interpreted.

4. BROKERS (§ 57)—CONTRACTS OF EMPLOYMENT —CONSTRUCTION—"SALE"—"PRICE."

The obligation of a party, contracting to pay a real estate broker a specified sum when he sells described property for a specified sum or any other price which he may accept, matures only when he disposes of the property for a money consideration or on an actual alienation thereof for cash or its equivalent, and a mere conveyance of the legal title thereto to a corporation organized to take and hold the same, the interests of the owners being thereafter represented by stock in the corporation, is not a "sale," which is a transfer of property for a valuable

consideration, especially when used in connection with the word "price," which means a consideration in current money for the purchase of the thing sold, the good faith of the party not being questioned.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Action by A. H. Good against A. P. Erker. From a judgment for defendant, plaintiff appeals. Affirmed.

Edward W. Foristel, of St. Louis, for appellant. Rassieur, Kammerer & Rassieur, of St. Louis, for respondent.

ALLEN, J.

This is an action by plaintiff, appellant here, to recover the sum of $1,125 upon the contract hereinafter set out in plaintiff's petition. The petition is as follows: "Petition. Plaintiff, for his cause of action states that prior to the 11th day of November, 1908, plaintiff claimed that the defendant was indebted to him in the sum of $1,125 for services rendered in connection with the purchase by the defendant of the property known as the northeast corner of Seventh and Lucas avenue; that, to avoid litigation, the defendant agreed with the plaintiff that when the defendant should sell the property situated at the northeast corner of Seventh street and Lucas avenue for $140,000, or any other price which defendant may accept, that he would then pay the plaintiff the said sum of $1,125, which contract was afterwards reduced to writing and is in words and figures as follows, to wit: `St. Louis, November 11, 1908. In consideration of one dollar to me in hand paid by A. H. Good, the receipt of which is hereby acknowledged and other valuable consideration, I hereby agree with said A. H. Good that whenever I sell the property situated at the northeast corner of Seventh and Lucas avenue at one hundred and forty thousand dollars ($140,000.00) or any other price which I may accept, I agree to pay said A. H. Good the sum of one thousand, one hundred and twenty-five dollars ($1,125.00). [Signed] A. P. Erker.' Plaintiff states that the defendant did sell the property situated at the northeast corner of Seventh and Lucas avenue on or about March 5, 1910, for the consideration of $10, which the defendant did accept. Plaintiff further states that he has duly performed all the conditions of the said contract on his part to be performed, but that the defendant has wholly failed to perform his part of the said agreement as to paying the plaintiff the amount specified in the said contract, to the damage of plaintiff in the sum of $1,125, for which sum he prays judgment."

The answer of the defendant was as follows: "Answer. Now comes defendant, and for answer to plaintiff's petition herein, admits that on or about the 11th day of November, 1908, he executed and delivered to defendant the agreement set out in the petition. Further answering, defendant denies that on or about March 5, 1910, he sold the property situated at the northeast corner of Seventh and Lucas streets, in the city of St. Louis, Mo., for a consideration of $10, or for any other price or sum; and denies that he received the sum of $10 or any other sum, for said real estate. Further answering, defendant states: That at the time of the execution of the agreement set out in plaintiff's petition, to wit, on the 11th day of November, 1908, the legal title to the real estate described in the petition was vested in defendant. That although the legal title to said property was so vested in defendant, he, in truth and in fact, held said legal title in trust for one Joseph Gummersbach to the extent of an undivided two-thirds interest therein. That said real estate at said time was, in fact, owned by said Joseph Gummersbach to the extent of an undivided two-thirds interest therein, and by defendant to the extent of an undivided one-third interest therein. That, in order to avoid the execution of a declaration of trust, and for the purpose of organizing a corporation to hold the legal title to said real estate, defendant and said Gummersbach on the 18th day of January, 1910, formed a corporation under the laws of the state of Missouri, known as the Northeast Corner Realty Company, which corporation had a capital stock of $30,000, divided into 300 shares of the par value of $100 each. That of said capital stock defendant subscribed for 100 shares, said Joseph Gummersbach subscribed for 199 shares, and Victor A. Gummersbach, a son of said Joseph Gummersbach, subscribed for 1 share; said latter share being subscribed and held by said Victor Gummersbach in trust for said Joseph Gummersbach. That after the organization of said corporation, and in accordance with the agreement and understanding of defendant and said Joseph Gummersbach, defendant conveyed said real estate to said corporation. That thereupon the stock of said corporation was issued to defendant and said Gummersbach in accordance with their subscriptions as aforesaid. That although a nominal consideration of $10 is recited in the deed conveying said property, defendant in truth and in fact did not receive any money or other thing of value, excepting said shares of stock, upon the transfer of said real estate to said corporation. That said real estate forms the only asset of said corporation, and the entire capital stock of said corporation is owned by defendant and said Joseph Gummersbach, in the same proportions in which they were...