Heckmann v. Van Graafeiland
| Decision Date | 07 December 1926 |
| Citation | 291 S.W. 190 |
| Parties | HECKMANN v. VAN GRAAFEILAND (No. 19345.) |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, St. Louis County; G. A. Wurdeman, Judge.
"Not to be officially published."
Action by William L. Heckmann, doing business as the Wm. L. Heckmann & Company, against C. P. Van Graafeiland. From a judgment for plaintiff, defendant appeals. Reversed.
Charles A. Routs, of St. Louis, for appellant.
D'Arcy & Neun, of St. Louis, for respondent.
This action was instituted by plaintiff, a real estate agent, to recover the amount of commission alleged to be due him on a proposed sale of certain real estate situated in the city of St. Louis, Mo. The case was tried by the court without the aid of a jury. The finding of the court was for plaintiff in the sum of $660, and judgment was duly rendered, from which defendant has appealed.
The petition alleged that defendant employed plaintiff to sell certain described property, and agreed to pay plaintiff a commission for such services as provided under the rules of the St. Louis Real Estate Exchange; that plaintiff procured and produced to defendant a purchaser named Fred J. Barr, who was ready, willing, and able to purchase said property on terms satisfactory to defendant; that defendant thereupon entered into a contract in writing with Mississippi Valley Trust Company, the agent of Barr, whereby defendant agreed to sell said property to said trust company or assigns; that defendant, in violation of the terms of said contract, failed and refused to convey said property to Barr, and refused to pay plaintiff the amount of his commission in the sum of $060.
The answer was a general denial.
This case involves the contemplated sale of two lots known as 3100, 3102 Washington avenue, in the city of St. Louis. The evidence disclosed that No. 3102 had been conveyed by warranty deed by one Mary E. Engel to Fanny Hildreth, the mother-in-law of defendant, on April 8, 1920. Defendant had acquired No. 3100 on December 7, 1918.
During the year 1922, defendant employed plaintiff as his agent to assist in the sale of No. 3100, under an oral agreement that defendant would pay plaintiff the regular rate of commission provided by the rules of the St. Louis Real Estate Exchange. During the period of plaintiff's agency, and on October 26 1922, No. 3100 was conveyed by defendant to Mrs. Hildreth. This transfer was made with the assistance of plaintiff, who knew that No. 3102 was also owned by Mrs. Hildreth.
On October 18, 1923, an option contract, signed by defendant personally, was entered into with Mississippi Valley Trust Company or its assigns, whereby said company was given 10 days in which to close the purchase of both lots on the terms provided in the contract, together with a further extension of 30 days upon the payment of the sum of $1,000. Before the expiration of the period of 10 days, the Mississippi Valley Trust Company presented Mr. Fred J. Barr, who, in turn, gave a check for $1,000 as earnest money, whereupon the following sales contract was executed:
It was at the request of plaintiff that defendant signed the above sales contract as agent for Mrs. Hildreth. In due course a warranty deed Was prepared by Mississippi Valley Trust Company and delivered to defendant for the purpose of having it executed. About November 17, 1923, defendant informed plaintiff that Mrs. Hildreth had refused to sign the deed, but advised him that he personally would pay plaintiff the amount of his commission. A similar statement was again made by defendant at his office on November 25, 1923, at the time the tender of the full purchase price was made by Barr to defendant. At the close of the case, the court made the following finding of fact:
"I will find as a matter of fact that Mr. Van Graafeiland did employ the plaintiff to sell this property, and that the deal was put through as far as the plaintiff could make it go, and that the owner of the property refused to sell and close the deal."
Defendant's sole assignment of error is directed at the court's finding in favor of plaintiff. We are mindful that in a case such as this, where the cause was submitted to the court, sitting as a jury, and no instructions were asked or given, the court's finding is conclusive on appeal, if there is substantial evidence to support it. Hunter v. Weil (Mo. Sup.) 222 S. W. 472; Biggs v. Oerly (Mo. Sup.) 257 S. W. 104; Railsback v. Bowers (Mo. Sup.) 257 S. W. 119; Falvey v. Hicks (Mo. Sup.) 286 S. W. 385.
The petition alleged that defendant had employed plaintiff to sell, or assist in selling, the two Washington avenue lots, that plaintiff produced a purchaser ready, willing, and able to buy, and that defendant refused to convey and also refused to pay plaintiff the amount of his commission. There is no doubt that the petition stated a good cause of action against the defendant. The only question for our determination is whether there was substantial evidence to support the allegations therein.
By stating that defendant refused to convey, the petition, by inference at least, alleged that defendant was the owner of the property. The evidence disclosed, however, that defendant was at no time the owner of the No. 3102 lot, but that such property had been acquired by Mrs. Hildreth in 1920, more than two years before defendant's relationship with plaintiff began. It is true that some time during the year 1922 defendant did employ plaintiff to assist in selling lot No. 3100, which defendant at that time owned, and did promise to pay plaintiff the regular rate of commission provided by the rules of the St. Louis Real Estate Exchange. Later, however, defendant, with the assistance of plaintiff conveyed this lot to Mrs. Hildreth, so that after October 26, 1922, defendant was not the owner of either lot, of which fact plaintiff was fully cognizant under his own admission on the witness stand.
About one year later the present controversy arose. After certain preliminary negotiations, on October 27, 1923, what purports to have been a valid contract for the sale of both lots was entered into between Barr, who had been produced by plaintiff as a purchaser, and `Mrs. Hildreth, the owner of the property. It was at plaintiff's request that Mrs. Hildreth's signature was affixed to this contract. Thereafter Mrs. Hildreth refused to convey, whereupon plaintiff...
To continue reading
Request your trial
-
Pemberton v. Ladue Realty & Const. Co.
...of the plaintiff's case and at the close of the whole case should have been sustained. Bridges v. Rice, 99 S.W. (2d) 531; Heckman v. Van Grafeiland, 291 S.W. 190; Carmen v. Harrah, 182 Mo. App. 365, 170 S.W. 388; Negbauer v. Fogel Const. Co., 58 S.W. (2d) 346; Hunt v. Sanders, 313 Mo. 169, ......
-
Pemberton v. Ladue Realty & Const. Co.
...close of the plaintiff's case and at the close of the whole case should have been sustained. Bridges v. Rice, 99 S.W.2d 531; Heckman v. Van Grafeiland, 291 S.W. 190; Carmen v. Harrah, 182 Mo.App. 365, 170 S.W. Negbauer v. Fogel Const. Co., 58 S.W.2d 346; Hunt v. Sanders, 313 Mo. 169, 281 S.......
-
Wright v. Lewis
...disturbed by appellate courts on appeal. Nickey v. Leder, 235 Mo. 30; General Renting & Inv. Co. v. Berardon, 164 Mo. 441; Heckmann v. Van Graafeiland, 291 S.W. 190; Coffin Elgin, 243 Mo. 455. OPINION Ragland J. The petition in this case is in two counts: The first is the statutory action f......
-
Wright v. Lewis
...disturbed by appellate courts on appeal. Nickey v. Leder, 235 Mo. 30; General Renting & Inv. Co. v. Berardon, 164 Mo. 441; Heckmann v. Van Graafeiland, 291 S.W. 190; Coffin v. Elgin, 243 Mo. RAGLAND, J. The petition in this case is in two counts: The first is the statutory action for determ......