Grether v. Di Franco
| Decision Date | 07 March 1944 |
| Docket Number | No. 26553.,26553. |
| Citation | 178 S.W.2d 469 |
| Parties | GRETHER v. DI FRANCO et al. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; David J. Murphy, Judge.
"Not to be reported in State Reports."
Action by Paul W. Grether against Carmelo Di Franco and others for services as a real estate agent, wherein, after appeal from a Justice Court, the case was dismissed as to named defendant before trial in Circuit Court. From a judgment for plaintiff, defendants appeal.
Judgment reversed in part and affirmed in part.
Anthony Canzoneri and Echeal T. Feinstein, both of St. Louis, for appellants.
Irvin H. Gamble and James F. Gamble, both of St. Louis, for respondent.
The suit originated in the justice of the peace court by plaintiff filing a petition stating that on or about the 8th day of August, 1940, the defendants, who claim to be the owners of certain real estate in the City of St. Louis, Missouri, employed plaintiff to lease said real estate, and it was agreed between the plaintiff and defendants that the defendants would compensate the plaintiff for his services in negotiating said lease; that through the efforts and services of plaintiff the defendants leased said real estate and that on account of said services plaintiff says the reasonable value of said services is the sum of $750, for which plaintiff prayed judgment.
No pleading was filed by defendants. The case reached the circuit court on appeal from the justice court, and upon trial before a jury plaintiff had judgment for $450 against defendants Carmelo Di Franco and Constantino Di Franco, the case having been dismissed before trial as to defendant Carmela Di Franco, wife of Constantino Di Franco, who had been joined as a party defendant. The case reaches this court on defendants' appeal.
The actual negotiations forming a basis for the claim on plaintiff's part were conducted by E. M. Loeb, who was connected with the real estate firm conducted by Paul W. Grether doing business under the name of John W. Grether & Company, and Loeb was specializing on finding locations for chain stores; and, on defendants' part by defendant Carmelo Di Franco a son of Constantino Di Franco who owned the property involved. E. M. Loeb testified that he was familiar with the location of the property at 5367 Southwest Avenue, and looked up the owners, and on August 8, 1940, in company with Paul W. Grether, called on Carmelo Di Franco at his place of business on South Kingshighway, and asked him if he owned a piece of property just west of 5361 Southwest Avenue, and he said, "Yes". Loeb then asked if he would sell 35 feet off of the lot on Southwest Avenue, and Carmelo Di Franco said he wouldn't sell. Loeb then said, "Will you make a lease for ten years to a five and ten cent store operator that will be approved by one of the largest merchandising stores in the country and that they will furnish the operator and approve the operator?" Carmelo Di Franco said, To which Loeb replied, Carmelo Di Franco replied, Loeb then said to Carmelo Di Franco, "The concern is the Ben Franklin Stores of Butler Brothers". Thereupon, an appointment was made to meet the following day at Butler Brothers place of business. At this meeting there were present, Mr. Loeb, Carmelo Di Franco, a man named Vaughn, B. C. Helmich and D. J. Murphy, the last two being officers connected with Butler Brothers. Who called Vaughn to the meeting is not disclosed, but Vaughn was seeking a location for opening a Ben Franklin Store. The matter was discussed and all terms of a lease agreed upon, but Di Franco required that before making the lease Vaughn should make a cash deposit of $1,500 to guarantee fulfillment of the lease on his part, and Vaughn being unable to meet this requirement the "deal fell through," at least so far as Vaughn was concerned.
The evidence shows that Butler Brothers do not lease any stores for retail purposes; that the name "Ben Franklin Stores" is a trade name adopted by Butler Brothers and permitted or required to be used by the operator of a store selling merchandise furnished by Butler Brothers. There are approximately 490 of these so-called "Ben Franklin Stores" operating in eleven states. The interest Butler Brothers have is to establish an outlet for merchandise to an operator who in their judgment has made a sound investment and leased a store room in a suitable locality and will use the trade name "Ben Franklin Stores". Plaintiff, who is in the real estate business, and knowing of this plan of Butler Brothers, seeks suitable sites for such a store, learns the name of the owner, and contacts such owner with a view of producing a tenant or buyer of the property through Butler Brothers, and, if such owner agrees to pay for the services, plaintiff takes him to Butler Brothers, and if at the time there be a prospective operator of a Ben Franklin Store, the owner of the site and the prospective operator are brought together and endeavor to agree on terms of a lease. If by this means a lease is entered into, plaintiff is entitled to a commission from the site owner according to their prior agreement. Plaintiff has no contractual relation with Butler Brothers whatever.
The deal with Vaughn having failed to materialize, as above stated, Loeb says that he did not contact Di Franco further because Di Franco assured him that if anything else came up he would get in touch with him. However, Loeb did endeavor to interest Di Franco in leasing the property for a filling station or a bowling alley, neither of which materialized. Later Carmelo Di Franco talked with Mr. Helmich about going into business for himself, but nothing materialized from that talk. And still later, in April, 1941, about eight months after the Vaughn transaction, a Mr. Pelligreen brought Mrs. Larma Wisely to Butler Brothers and told Mr. Helmich that Mrs. Wisely wanted a location for a ten cent store. Helmich told Mr. Pelligreen, or Mrs. Wisely, to communicate with Mr. Di Franco. Later they met at Mr. Helmich's place of business and a lease contract was entered into between Constantino Di Franco and Mrs. Wisely which provided in substance that Di Franco would erect a suitable building on the site and Mrs. Wisely would pay $100 per month rental during the first year, and $125 per month during the succeeding nine years, together with certain additional rents dependent on the gross sales of the store. Under this arrangement the store was operated as a Ben Franklin Store by Mrs. Wisely and during the first year she paid at least $125 per month rental, and is still operating the store and paying a rental of $125 per month under her lease contract.
The evidence as to the value of the services of an agent in procuring a lease for the owner of property was the testimony of Paul W. Grether whose version of the contract was, that Mr. Loeb said to Carmelo Di Franco, "Before we disclose who our prospect is, we want to know whether you are going to pay us the regular commission set by the St. Louis Real Estate Exchange." To which Mr. Di Franco replied, "Oh, no question about that". And his further testimony that "Where a ten year lease is made it is three per cent of the gross rental, also including any additional bonus that might be paid during the term of the lease." And, on cross-examination Loeb testified that Carmelo Di Franco did not tell him that he was the owner of the property. Loeb further said, And D. J. Murphy, who was present at the meeting at Butler Brothers, was asked the question, "Most of the dealings were with Carmelo, were they?" to which he answered, "He told us he represented his father."
The appellants' first assignment of error is the refusal of the trial court to give and read to the jury separate demurrers to the evidence. The sufficiency of the evidence to make a submissible case upon defendants' demurrer must be adjudged upon all of the evidence in plaintiff's favor including any evidence introduced by defendants and tending to aid plaintiff's case or supply omissions in his evidence. Reviewing the evidence, we think it was sufficient to make a submissible case in plaintiff's favor as against defendant Constantino Di Franco. The testimony is uncontradicted that Carmelo Di Franco, who was...
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