Gould v. St. John

• Decision Date: 10 December 1907
• Parties: GOULD v. ST. JOHN et al.
• Court: Missouri Supreme Court

106 S.W. 23

207 Mo. 619

GOULD v. ST. JOHN et al.

Supreme Court of Missouri, Division No. 2.

December 10, 1907.

1. APPEAL—REVIEW—PRESUMPTIONS.

When the trial court in granting a new trial gives its reasons for so doing, as required by Rev. St. 1899, § 801 [Ann. St. 1906, p. 764], it will be presumed on appeal from such order that the ruling was based only on the grounds stated.

2. SAME—DISCRETION OF COURT—NEW TRIAL.

The action of the trial court in granting a new trial on the ground that the verdict was against the evidence will not be disturbed on appeal, no abuse of discretion being shown.

3. BROKERS—COMPENSATION—ACTION—EVIDENCE.

In an action for a broker's commission, evidence held not to preponderate in favor of plaintiff.

4. NEW TRIAL—GROUNDS—VERDICT AGAINST EVIDENCE.

Where the trial court is satisfied that the preponderance of the evidence is against the party who has received the verdict, it is his plain duty to grant a new trial.

5. APPEAL—REVIEW—PRESUMPTIONS.

It is presumed that the action of the trial court in granting a new trial is correct.

Appeal from Circuit Court, Morgan County; James E. Hazell, Judge.

Action for broker's commissions by Fred J. Gould against John P. St. John and another. From an order setting aside a verdict in favor of plaintiff and granting a new trial, plaintiff appeals. Affirmed.

Scott J. Miller and William Forman, for appellant. John F. Gibbs and Moore & Williams, for respondents.

BURGESS, J.

This is an appeal from an order of the circuit court of Morgan county setting aside a verdict for $5,654.50 in favor of the plaintiff, and granting a new trial to defendants, the reasons given by the court for sustaining the motion for a new trial being specifically stated as follows: "First. Because the court erred in overruling the demurrer to the evidence offered by defendants at the close of plaintiff's case. Second. Because the court erred in overruling the demurrer to the evidence offered by defendants at the conclusion of the case. Third. Because the verdict is against the weight of the evidence."

The action brought by plaintiff against the defendants was founded upon the following contract: "Versailles, Mo., Dec. 4th, 1902. Fred J. Gould, Versailles, Mo.—Dear Sir: We will give you one-half of all the gross profits made by us in the sale of any real estate to customers brought or sent us by you. When the party is sent us, you must give them a letter of introduction, or otherwise notify us, before such sale is made that such buyer is your customer. We will pay you your share in each sale as soon as the same is completed. You to transact this class of business in this county solely through our firm. You to bear your own expenses; we to bear ours. This arrangement to be terminated at the will of either of us, but such termination not to interfere with any deal on hand, or otherwise made. Very truly yours, St. John & Noyes. I hereby accept the above conditions, and will use my best efforts for the success of the undertaking. Fred J. Gould." The petition alleges that the defendants had an option on a large tract of land, comprising 5,111 acres, in Morgan county, and known as the "Halderman Tract"; that plaintiff, after having entered into said contract with defendants, began trying to find customers for said land, and did obtain customers, to whom defendants sold said land at a profit to the defendants of $37,054.75, for one-half of which sum, $18,527.37, plaintiff prayed judgment.

The defendants, during the years 1902 and 1903, were real estate agents and brokers, with headquarters at Versailles, Morgan county, and plaintiff, who was also a real estate agent, resided at Chillicothe. He came to Versailles in the fall of 1902, and, prior to this contract, had been handling some deals for himself and another party. It appears that, besides the tract of land in question, the defendants had several coal properties for sale. About the date of the contract between plaintiff and defendant, there came from Illinois to Versailles some parties who were trying to purchase coal lands owned by Hubbard & Moore, among them being Sult Brothers, prospective purchasers, and C. W. Waldeck and George H. Lucas, real estate agents. Waldeck, it would appear, came with Sult Brothers to inspect the mine, and Lucas was acting as an agent for Hubbard & Moore, and had become acquainted with Gould, the plaintiff. According to plaintiff's evidence, while negotiations in reference to this Hubbard & Moore coal mine were pending, he got into conversation with Lucas, and mentioned to him the coal lands for sale by defendants, whereupon Lucas said "Mr. Gould, I can procure some buyers for these coal lands." Plaintiff took Lucas to see Mr. St. John, one of the defendants, and Lucas told St. John that he knew of parties in Peoria who were very much interested in coal. Mr. St. John said, "We will be willing to give you, Mr. Lucas, if you can make a sale to these parties, 5 per cent." That the plaintiff agreed with St. John to bear one-half of said 5 per cent. It would seem also, according to plaintiff's evidence, that there was an understanding between Lucas and Waldeck that the latter should receive one-half of the said 5 per cent. commission promised by St. John in the event Waldeck secured any purchasers for said land, and that Waldeck and Lucas were practically partners. The tract of land in question was not sold until some time in 1903, before which time, on February 28, 1903, the contract between plaintiff and defendants had been terminated by the latter, and what part plaintiff took in the negotiations which finally resulted in the sale of the land is shown only in a telegram which, on January 5, 1903, he sent to C. C. Magenheimer, who, with others, purchased said land. Plaintiff had heard of Magenheimer through Lucas and Waldeck. The latter had interested Mr. Magenheimer in the land negotiations, and on January 5, 1903, he came to St. Louis on business, and while there he accidentally met plaintiff, who, as he supposed, was a partner with St. John & Noyes. Waldeck said to plaintiff, "Magenheimer can't hear a word from St. John & Noyes," and then suggested that he (Gould) send a telegram to Magenheimer, at Peoria, Ill., which he did. This telegram was as follows: "St. Louis, Mo., 1-5, 1903. C. C. Magenheimer, Peoria, Ill. Send on mining engineer to examine coal lands, Morgan county. When can you send him? Answer. Fred. J. Gould, for St. John & Noyes." This message was answered by Magenheimer, on January 7th, as follows: "Peoria, Ill., Jan. 7th, 1903. To Fred J. Gould, care of St. John & Noyes, Versailles, Mo. Just received message. Will be there first of the week to examine coal lands. Letter. C. C. Magenheimer." Magenheimer did not know Gould, and before sending him said telegram he inquired of Waldeck who Gould was, and Waldeck told him that he was a partner with St. John & Noyes.

It appears from the evidence on the part of the defendants that St. John first met Waldeck at Versailles at the time the latter, with the other gentleman mentioned, had come there to look at the Hubbard & Moore property. St. John, who was introduced to Waldeck by the clerk of the hotel where the party stopped, suggested to Waldeck that his firm had several tracts of coal land for sale, specially mentioning a tract of 1,000 acres known as the "Bailey Tract," belonging to a General Hudson, and offering to give Waldeck 5 per cent. commission on all sales to purchasers brought to his firm by him. Waldeck accepted the proposition, stating that he knew of parties in Peoria, Ill., whom he thought he could interest and influence to purchase this Bailey tract, as well as other lands which defendants had for sale. In a day or two, Waldeck, with Sult Brothers, left for Illinois, the latter failing to buy the said Hubbard & Moore property. Before leaving, Waldeck made arrangements with St. John to have a descriptioin and plat of the Bailey land sent to him at Pekin, Ill., where he resided, and St. John sent him the same a few days after. Shortly after receiving the description and plat of the Bailey land at his home in Pekin, Mr. Waldeck went to Peoria, and showed them to C....