Herrick v. Maness

• Decision Date: 04 April 1910
• Parties: HERRICK v. MANESS.
• Court: Missouri Court of Appeals

127 S.W. 394

142 Mo. App. 399

HERRICK v. MANESS.

Springfield Court of Appeals. Missouri.

April 4, 1910.

1. JUSTICES OF THE PEACE (§ 100)—PLEADING—VARIANCE.

Whether plaintiff, in an action in a justice court, pleaded his cause of action as on a quantum meruit or an express contract is immaterial; he may recover, though his pleading be one of quantum meruit, and the evidence shows an express contract.

2. JUSTICES OF THE PEACE (§ 91)—PLEADING—EXPRESS CONTRACT.

Plaintiff does not plead an express contract as to amount of commissions, either by filing with a justice a claim in the form of an account, simply stating defendant was indebted to him for broker's commissions on the sale of certain property for a certain amount, the commissions amounting to a certain sum, or by an amended statement, putting the cause of action in the form of a statement of facts that the property was sold for a certain sum, on certain terms as to payment, that he produced a purchaser able, ready, and willing to buy on such terms, but the defendant refused to consummate the sale, and that the customary commission for such service was a certain amount.

3. JUSTICES OF THE PEACE (§ 91)—PLEADING—FORM OF STATEMENT.

Plaintiff, in an action in justice court, where, under Rev. St. 1899, § 3852 (Ann. St. 1906, p. 2135), prescribing the kinds of pleadings to be filed by him, a statement of the facts is to be filed, may put the same in the form of an account.

4. PARTIES (§ 19) — PLAINTIFFS—NECESSARY PARTIES.

Though plaintiff and his son were in the real estate business, conducted in the name of H. & Son, yet the son, having no interest therein, but being paid a salary by plaintiff, was not a necessary party to an action for commissions for making a sale.

5. BROKERS (§ 54)—RIGHT TO COMMISSIONS —CONDITIONS PRECEDENT—WAIVER.

Where a broker, having found a person ready, willing, and able to purchase on the authorized terms, so informs the owner, and the owner refuses to proceed further, obligation of the broker to do more, and deliver to the owner a contract of the purchaser, or to bring to him the purchaser, is waived.

6. BROKERS (§ 63)—RIGHT TO COMMISSIONS.

A broker is entitled to commissions, where, but for refusal of his employer's wife to join in the deed, a sale would have been made.

Appeal from Circuit Court, Greene County; G. A. Watson, Special Judge.

Action by Sam Herrick against D. J. Maness. Judgment for plaintiff. Defendant appeals. Affirmed.

Wright Bros., for appellant. Patterson & Patterson, for respondent.

GRAY, J.

This case had its origin in the justice of the peace court in Greene county, and after a trial before a jury in that court, in which the defendant was successful, an appeal was taken to the circuit court of that county and tried before Hon. G. A. Watson, Special Judge, resulting in a verdict and judgment in favor of the plaintiff, and the defendant's appeal is now in this court.

Inasmuch as the question is raised concerning the pleadings, it may be stated that the plaintiff's claim filed before the justice was in the form of an account, and simply stated that the defendant was indebted to the plaintiff for real estate broker's commission on the sale of the property in question for $1,900, and that said commission amounted to $72.50. When the case reached the circuit court, the defendant filed a motion to require the plaintiff to make his cause of action more specific. The record does not show that this motion was acted upon; but the plaintiff did file an amended statement, in which he put his cause of action in the form of a statement of facts, in which it was stated that the property was sold for $1,900, $300 cash and the balance in payments of $15 per month; that he produced a purchaser able, ready, and willing to buy the property on the terms, but the defendant refused to consummate the sale; and that the customary commissions for such service amounted to $72.50, and prayed judgment therefor. Defendant filed a motion to strike out this amended statement on the ground that it was a departure, and substantially changed the cause of action. The court overruled this motion, and the defendant excepted.

We gather from the defendant's contention in this court that the first statement was an action on an account, and the second is a statement of facts, and the first is on a quantum meruit, and the second on an express contract. Under the practice in this state in justices' courts, it is immaterial whether the plaintiff's cause of action is alleged to be on a quantum meruit or an express contract, as the plaintiff has the right to recover even though his pleading be one of quantum meruit and the evidence shows an express contract. Buschmann v. Bray, 68 Mo. App. 8; Walker v. Guthrie, 102 Mo. App. 420, 76 S. W. 675. This has been the rule in this state in actions before justices of the peace ever since Metz v. Eddy, 21 Mo. 13, wherein the court said: "This court will not look into any technical inaccuracies as to the name of the action, whether it be for work and labor, or an account for wages, or quantum meruit, or on special agreement. We shall not reverse for any such imperfections." The rule is different in actions commenced in the circuit court. Lumber Co. v Snyder, 65 Mo. App. 568. But as we read the statement and the amended one, it cannot be said that either of them is upon an express contract as to the amount of the commission. This point is ruled against the appellant.

In actions commenced before a justice of the peace, the statute (section 3852, Rev. St. 1899 [Ann. St. 1906, p. 2135]) provides for three kinds of pleadings on the part of the plaintiff, as follows: If the suit is upon an instrument executed by the defendant, the same is to be filed. If upon an account, the account shall be filed, and, in other cases, a statement of the facts constitute the cause of action, and the right in cases where a statement of the facts are to be filed, to put the same in the form of an account, has been expressly recognized. Sone, to Use of, v. Wallendorf, 187 Mo., loc. cit. 13, 85 S. W. 592. Measuring the original statement filed in this case with the rule laid down by the Supreme Court, it was good, and it was not necessary to file the amended one. The amended statement was for the same cause of action, to wit, the commission for finding a purchaser for the defendant's property, and it is also a good statement of a cause of action filed before a justice of the peace. Hammond v. Berkowitz, 123 S. W. 502; Jarrett v. Mohan (decided at the last term of this court) 126 S. W. 212.

The testimony in behalf of the plaintiff is to the effect that the defendant came to his office and told him this property was for sale, and that he would sell it for $1,900, $300 in cash and the balance in payments of $15 per month, and interest on deferred payments, and that at that time he listed the property upon his books. The plaintiff was permitted to read to the jury his book showing that on September 3, 1907, the property was listed with him for sale by the defendant on the above terms. The plaintiff found one Rathbun, a prospective purchaser for the property, and who, after looking at it, agreed to buy it upon the terms above stated. Mr. Rathbun also paid to the plaintiff $100 on the purchase price, and testified that he was ready to take the property upon the above terms, and also offered testimony showing that his brother, Will Rathbun, was ready to let him have the additional money for the cash payment. In addition to this, he testified that he owned 80 acres of land, worth from $1,600 to $2,000, and an interest in a billiard hall worth $2,350, and was also making a good salary. It may be said, however, that the farm was his homestead, and there was $900 incumbrance on the billiard hall. The evidence shows that the title to the property was in the defendant's wife, and when Mr. Rathbun was looking at the property she objected to selling it. It is claimed that because of her objections Mr. Rathbun made up his mind not to buy it, and therefore that the plaintiff did not find a purchaser for the property so as to be entitled to his commission. His testimony upon that point, is as follows: "Q. You concluded, then, you did not want to buy it after she objected? A. I concluded, if she didn't want to sell it, I didn't want to buy it. Q. And you came to that conclusion then and there, didn't you, when you and your wife were there Sunday? A. No, I never came to that conclusion there. Q. You didn't want the place at all and wouldn't have it? A. Not if they didn't want to sell it. Q. So you went away and left it, and you afterwards got back your $100? A....