Harry M. Fine Realty Co. v. Stiers

• Decision Date: 21 July 1959
• Docket Number: No. 30214,30214
• Citation: 326 S.W.2d 392
• Parties: HARRY M. FINE REALTY COMPANY, Inc., a corporation, Plaintiff-Appellant, v. L. J. STIERS, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 392

326 S.W.2d 392

HARRY M. FINE REALTY COMPANY, Inc., a corporation, Plaintiff-Appellant, v. L. J. STIERS, Defendant-Respondent.

No. 30214.

St. Louis Court of Appeals, Missouri.

July 21, 1959.

Benjamin B. Tepper, Clayton, for appellant.

John J. McAtee, Clayton, for respondent.

BRADY, Commissioner.

In its action for breach of contract, appellant-plaintiff sought $4,344.86 as damages and now appeals from the judgment and findings of the trial court who heard the case without a jury and found for the defendant-respondent. Appellant-plaintiff's 'assignments of error' can be considered as presenting two actual points. First, that under the law and the evidence the court should have found for the appellant-plaintiff and second, that the court erred in the exclusion of competent, material and relevant evidence.

This court will review non-jury cases as suits in equity, give due regard to the trial court's opportunity to judge credibility of witnesses and will not set aside the trial court's judgment unless it is clearly erroneous, but will make independent findings of fact and will reach its own conclusions on the weight of the evidence. Section 510.310 RSMo 1949, V.A.M.S.; Davidson v. Fisher, Mo.App., 258 S.W.2d 297. Our final duty is to affirm the judgment or enter or direct such judgment as justice requires. Browder v. Milla, Mo.App., 296 S.W.2d 502.

The pertinent testimony was that the appellant had acted as sales agent when the Wall Building, located on the Northwest corner of Vandeventer Avenue and Olive Street in St. Louis City was sold by respondent on August 1, 1948. As a consequence of the sale, a promissory note in the principal sum of $77,000 secured by a second deed of trust became jointly owned by appellant, respondent, one Callicott who actually sold the building for respondent while working for appellant and took an interest in the second deed of trust as his commission, and one Geffen, who was real estate agent for the purchasers of the Wall Building and took his interest in the second deed of trust as his commission, but who has no connection with appellant in any capacity. The interests of appellant, $12,000, of which amount Callicott's interest was $6,000, and of Geffen, $5,000, appeared by endorsement on the note. Respondent held this deed of trust in his possession but the payments were made to appellant, who sent them to respondent, who then sent to appellant, Callicott and Geffen a check for their respective shares of the interest payments made, they having agreed to take no principal payments until respondent was fully paid. In March, 1955, the respondent's interest was $32,448.63, and the other parties' interests as above stated.

Callicott's testimony on direct examination was that he had discussed with respondent the sale of respondent's second deed of trust at various times after the original sale in 1948, and in January or early in February, 1955, respondent and Callicott were discussing entering business together: that Callicott was to see a Mr. Rabushka about the sale of the second deed of trust and did so, but respondent would not sell at the discount offered (15%); that after several other conversations, respondent agreed to sell at that figure of discount; that Callicott never informed respondent that appellant was the purchaser, because he never knew that appellant was; that appellant had merely told Callicott he could handle the deed of trust at that discount (15%); that prior to this time the best offer Callicott had ever had was at a 20% discount from Mr. Melvin Rabushka, that this offer was refused by respondent. Callicott further testified that he had agreed with appellant to sell his interest to appellant at a 15% discount; that Rabushka's offers of less than 20% discount were made after March 2, 1955, the date of Exhibit No. 2; that after the letter of March 2, 1955, he attempted to obtain the deed of trust from respondent but was unsuccessful; that on March 22, 1955, he and appellant's counsel went to respondent's office with the cashier's check but that respondent was not there; that respondent did not limit him to selling only to the Rabushka estate when he asked him to sell the second deed of trust for him. On cross-examination he stated that the check was never tendered to respondent personally; that he may have or may not have dictated the letter of March 2, 1955; that Rabushka later changed his offer of 20% discount to 15%, then to 12 1/2%, and still later to 7 1/2%, but that he never informed respondent of these changes since they occurred after the March 2, 1955 letter; that he never told respondent that the Rabushka estate was the purchaser of the second deed of trust, nor did he tell him that appellant was buying it; that his connection with appellant was that when he, Callicott, worked out a deal, he paid appellant a certain share of it, and when asked to do so by appellant, he would assist appellant in working out deals, but was not an employee of appellant and merely had desk space; that he received the full amount of his interest in the second deed of trust without any discount; that he did not know the building had been sold until respondent told him.

Other testimony on behalf of appellant was given by the witness, Gable, who testified that he is the assistant cashier at the Mutual Bank and Trust Company and identified the cashier's check referred to by the witness Callicott and stated that it was made payable to respondent and that the remitter was Ben Kleg Realty Company. On cross-examination the witness testified that this check was never cashed or deposited by the respondent but was cancelled by the remitter on March 23, 1955.

Matthew Maloney, Escrow Officer, Title Insurance Corporation, offered testimony that respondent brought in the note and second deed of trust on March 22, 1955 and was paid in full, receiving $32,634.66, for which he gave receipt that day; that the property was sold and the full purchase price paid on March 18, 1955; that the title company was holding the second deed of trust in escrow in case any debts appeared against the estate of Hyman Rabushka, then in probate process, since the title to the property was subject to debts against the estate; that between March 23, and April 1, 1955, Geffen and appellant were paid in full for their interests; that his records do not show any notification of the holders of the first or second deeds of trust of the sale of this property although his company ordinarily notified holders of deeds of trust.

Other testimony on behalf of appellant was that offered by Harry M. Fine, President of appellant, who testified as to the interest of Geffen, Callicott and his company in the note and second deed of trust and how those interests were created and in what amounts as heretofore stated. He testified also as to the method of payment of interest to these three co-holders as previously stated; that he made an offer to respondent on the last day or two of February or the first day of March to purchase this property; he identified the letter of March 2, 1955 from respondent; that after receiving this letter, he made arrangements to purchase the interests of Callicott and Geffen and then made further arrangements to sell the second deed of trust to Ben Kleg at a discount of 5%; that he received another letter from respondent on March 22, dated March 21, cancelling and repudiating his earlier letter to the witness, which he read into the record; that the figure of $27,470.66 was arrived at by deducting 15% discount from $32,448.63, the amount of respondent's interest in the note and deed of trust as of that date, giving credit for interest and adding on 'interest from the date of the monthly payment to the 22nd of March, which amounted to $89.32. And he had a cashier's check for $27,470.66'; that he was unable to obtain the second deed of trust from respondent; that the property was sold and this deed of trust paid off about the 22nd or so of March; that the first he knew of the sale was on the 21st of March, when the title company told him of the sale and that they were going to pay off this deed of trust; that he had been in the real estate business for 33 or 34 years, and his firm was a member of the Real Estate Exchange; that he had no personal contact with respondent except in 1948 when his firm sold the Wall Building; that his firm was not managing the property for respondent in 1955 nor had it previously; that neither he nor any member of his firm had anything to do with the sale of this property in March of 1955; that Rabushka called him on March 16th, 17th, or 18th and wanted to know if he could buy the second deed of trust and that he had informed Rabushka that the deed of trust had already been sold; that Callicott was his (appellant's) agent for the purchase of the deed or trust from Mr. Stiers; that he got the cashier's check for tender after March 22, 1955, but had been trying to make arrangements to give him the money from March 13th on; and that he never was told of any offer to purchase at 7 1/2% discount.

Upon appellant resting, respondent moved for dismissal on the ground that there was no proof of an executed contract, only an executory contract being proved, and that there was no proof of tender. This motion being overruled, respondent offered testimony by respondent, Melvin Rabushka, and respondent's secretary, Opal K. Catlett. Respondent's testimony was in agreement with what has been stated herein as to the amount of the interests of the appellant, Geffen and Callicott in the note and deed of trust and how those interests were created. He further testified that he and Callicott had been discussing entering business together and had discussed the sale of this deed of trust at 15% discount; that prior to March 2, 1955, he had a discussion with Callicott about the sale and told him he would sell only if all were taking the same discount, to which Callicott agreed;...