Hoover v. Whisner

• Decision Date: 02 December 1963
• Docket Number: No. 8217,8217
• Citation: 373 S.W.2d 176
• Parties: Jess HOOVER d/b/a Hoover Agency, Plaintiff-Respondent, v. Lloyd WHISNER and Wilma Whisner, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 176

373 S.W.2d 176

Jess HOOVER d/b/a Hoover Agency, Plaintiff-Respondent, v. Lloyd WHISNER and Wilma Whisner, Defendants-Appellants.

No. 8217.

Springfield Court of Appeals, Missouri.

Dec. 2, 1963.

Frieze & Crandall, Carthage, for defendants-appellants.

McReynolds, Flanigan & Flanigan, Carthage, for plaintiff-respondent.

STONE, Judge.

In this jury-waived action at law to recover for broker's services in selling real estate, the court entered judgment for $540 in favor of plaintiff, Jess Hoover, a licensed real estate broker [Sec. 339.010(1)] doing business as the Hoover Agency with his office in Carthage, Missouri, against defendants, Lloyd Whisner and Wilma Whisner, the owners of the property sold. ¹ Defendants appeal.

At the outset, we are confronted with plaintiff's-respondent's motion to dismiss the appeal for the alleged failure of defendants'-appellants' brief to comply with the minimum essentials detailed in Rule 83.05. The motion to dismiss is not without merit. Defendants' 'points relied on' are: 'I. The Court erred in finding for plaintiff and against defendants. II. The finding and judgment of the court is without support in the evidence. III. The finding and judgment of the court are against the weight of the credible evidence. IV. The finding and judgment of the court is contrary to the law.' In language as explicit and demanding as it is plain and unambiguous, subdivision (a)(3) of Rule 83.05 directs that '[t]he points relied on * * * shall show what actions or rulings of the Court are sought to be reviewed and wherein and why they are claimed to be erroneous'; and, that there may be no reason or opportunity for misunderstanding on the part of those who make a serious and purposeful effort to follow the rule, the same direction is emphasized by repetition and amplified by example in subdivision (e). It has been pointed our repeatedly that the cited subdivisions of Rule 83.05 clearly contemplate particularization in 'points relied on' ² and that the requirements of the rule are not satisfied by discussion and references in the 'argument,' ³ for an appellate court has no duty to seine through the entire brief in an effort to ascertain the points on which an appellant depends. Sides v. Contemporary Homes, Mo.App., 311 S.W.2d 117, 122; Beeler v. Board of Adjustment of City of Joplin, Mo.App., 298 S.W.2d 481, 483(2). The quoted 'points' in instant defendants' brief are utterly insufficient, ⁴ and dismissal of the appeal for flagrant violation of Rule 83.05 would be justified.

However, this case having been tried upon the facts without a jury, appellate review of the record is de novo upon both the law and the evidence as in suits of an equitable nature. Rule 73.01(d); Sec. 510.310(4); Ennis v. Korb, Mo., 347 S.W.2d 671, 675(1). Cognizant, that, in some equity cases, our Supreme Court has, notwithstanding the insufficiency of appellants' briefs, proceeded to determine whether the judgment nisi was justified upon the record [e. g., Frisch v. Schergens, Mo., 295 S.W.2d 84, 85(1); Turner v. Mitchell, Mo., 297 S.W.2d 458, 460(2)], and mindful that 'our primary duty is to litigants rather than to counsel who represent them' [Ambrose v. M. F. A. Co-operative Ass'n. of St. Elizabeth, Mo., 266 S.W.2d 647, 650; Songer v. Brittain, Mo.App., 272 S.W.2d 16, 18], we have concluded to determine in this instance the sufficiency of the evidence to support the judgment, that being a question which may be presented on appeal regardless of whether it was presented in the trial court [Rule 73.01(d); Sec. 510.310(4)] and that being the principal issue which, as it appears, instant defendants here seek to raise. Compare Mason's Estate v. Sagehorn, Mo.App., 303 S.W.2d 194, 195(2). Accordingly, we overrule plaintiff's motion to dismiss the appeal, albeit with some hesitancy, again confessing our wonderment that capable counsel so frequently assume such not inconsiderable but obviously unnecessary risks in dealing with the interests of their clients [Thompson v. Jenkins, Mo., 330 S.W.2d 802, 803; Moore v. Rone, Mo.App., 355 S.W.2d 398, 401; Steckler v. Steckler, Mo.App., 293 S.W.2d 129, 131] when, as our brethren have pointed out, the procedural provisions now embodied in Rule 83.05 'are clear and simple and easily followed upon a cursory examination' [Onka v. Butkovich, Mo.App., 294 S.W.2d 357, 359] and '[o]bedience * * * calls for no cryptic or unique legal discernment or technique.' White v. Nelson, Mo.App., 283 S.W.2d 926, 928.

Mrs. Belle Stutsman, a licensed saleslady for the Hoover Agency, had been 'raised' at Sarcoxie, Missouri, and had known defendants 'all my life.' Having heard that defendants' 30-acre tract on Highway 166 about one mile west of Sarcoxie was for sale, Mrs. Stutsman drove to that tract on Saturday, September 16, 1961. Defendants resided in the same neighborhood but the dwelling house on the 30-acre tract was unoccupied and sorely in need of redecoration and repairs which defendant, Lloyd Whisner, 'sort of a builder' who operated a tavern on Saturdays and Sundays, was making 'a little at a time.' When Mrs. Stutsman reached the dwelling house on September 16, defendant Lloyd was not there but his wife, Mrs. Wilma Whisner, was in the yard.

Mrs. Stutsman's testimony as to what occurred on that occasion was, in substance, that she handed her card to defendant Wilma and inquired whether 'the place' was for sale to which defendant Wilma replied 'yes,' and that, when Mrs. Stutsman then asked 'if they would list the place for sale' with the Hoover Agency, defendant Wilma said 'they didn't care who sold it as long as they got their money.' In response to Mrs. Stutsman's subsequent questions, defendant Wilma quoted the price 'they were asking for the 30-acre tract' as '$10,000 after it was cleaned'--'they were going to clean it up,' stated that 'probably half' of the acreage was tillable and the remainder was pasture, expressed her understanding that there was 'a good well,' and supplied other information all of which was recorded by Mrs. Stutsman on a listing form used by the Hoover Agency. Mrs. Stutsman knew that the 30-acre tract was owned by defendants as tenants by the entirety but, in view of her conversation with defendant Wilma, she (Mrs. Stutsman) did not think it necessary to obtain authorization to list from defendant Lloyd personally. According to Mrs. Stutsman, 'she (defendant Wilma) said that Mr. Whisner had said it was all right'--'she told me to go ahead.' However, defendant Wilma knew nothing about the taxes or the loan on the 30-acre tract; and, for information as to these matters, she told Mrs. Stutsman that it would be necessary to talk with defendant Lloyd. Advised by defendant Wilma that the best time to see defendant Lloyd would be 'in the evening after five,' Mrs. Stutsman returned to the neighborhood shortly after 5 P.M. on the following Monday, September 18, and from the nearby home of her sister unsuccessfully undertook to contact defendant Lloyd over the telephone until about 10 P.M. when she was moved to abandon the effort by the discouraging comment of defendant Wilma that 'he is playing cards and no telling what time he will come home.' Mrs. Stutsman did not thereafter talk with defendant Lloyd. There was no written contract between the Hoover Agency and defendants.

Defendant Wilma testified that, when Mrs. Stutsman asked on Saturday, September 16, whether the Hoover Agency might list the 30-acre tract for sale, 'I told her she would have to talk to my husband, that I didn't have anything to do with it.' According to defendant Wilma, she neither quoted a price for the tract nor supplied any information concerning it. However, prior to the following Saturday, September 23, defendant Wilma admittedly told her husband of her conversation with Mrs. Stutsman on September 16 and that the latter 'was wanting to list the place.'

On the afternoon of Saturday, September 23, Carl O. and Mrs. Marie Tibbetts, husband and wife, came to the office of the Hoover Agency in Carthage and, in the absence of another salesman who 'had been working with them,' talked with salesman Floyd Thomas. Saleslady Stutsman, in the office at the time, told salesman Thomas and the Tibbetts that 'she had the listing' of defendants' 30-acre tract and that 'they (the Tibbetts) probably would be interested in it.' Both Thomas and Mrs. Stutsman testified that they then priced the tract to the Tibbetts at $10,000. Upon trial, Tibbetts said 'I don't think they told me a definite price' but he quickly conceded that Thomas and Mrs. Stutsman knew what he wanted to pay, to wit, 'around ten or twelve thousand dollars.' Mrs. Tibbetts' testimony was to the same effect.

In any event, Thomas drove the Tibbetts to defendants' 30-acre tract that same afternoon. As to what occurred on that occasion, the parties again are in sharp disagreement. The substance of Thomas' testimony was that, when he and the Tibbetts reached the dwelling house on the tract, defendant Lloyd 'came out' of the house; that Thomas 'told him that we had a buyer for the place that we had listed, and asked if it would be all right to show it'; and that defendant Lloyd responded, 'come right on in,' and 'went along with us and showed the place.' On the other hand, defendant Lloyd's version was that Thomas already had shown the property and he and the Tibbetts were at the Thomas automobile 'ready to leave' when defendant Lloyd drove up; that Thomas then identified himself, stated that he had shown the property, commented that 'Mrs. Stutsman has told me she was going to get a listing on it,' complimented the Tibbetts as 'very nice people,' and asked 'was it all right to show them'; that defendant Lloyd replied 'the place isn't showable--it needs a lot of cleaning and improvement done before it should be showed to a buyer'; and that, after 'just friendly conversation' for 'a very short time,' Thomas and the Tibbetts left. The Tibbetts likewise...