Hoyt v. Buder

• Decision Date: 18 February 1928
• Docket Number: No. 26270.,26270.
• Citation: 6 S.W.2d 947
• Parties: JOHN G. HOYT v. LEO R. BUDER, Appellant.
• Court: Missouri Supreme Court

6 S.W.2d 947

JOHN G. HOYT v. LEO R. BUDER, Appellant.

No. 26270.

Supreme Court of Missouri, Division Two.

February 18, 1928.

Appeal from Circuit Court of City of St. Louis. — Hon. Franklin Miller, Judge.

AFFIRMED.

Campbell Cummings and Buder & Buder for appellant.

(1) The relation between the parties was one of joint adventure. Plummer v. Trost, 81 Mo. 430; Blackwell v. Banks Bros., 132 Ga. 845; Forbes v. Butler, 242 Pac. 950; Keiswetter v. Rubenstein, 235 Mich. 36; Perry v. Morrison, 247 Pac. 1004; Stoop v. Nat. Bank, 250 Pac. 760; Joring v. Harriss, 292 Fed. 974; Manget v. Carlton, 130 S.E. 604; Robb v. Moffett, 239 Pac. 674; In re Taub, 4 Fed. 993; Crutchfield v. Robinson, 270 S.W. 778; Murphy v. Motion Picture Bureau, 190 N.Y. Supp. 849; Cordia v. Connolly, 261 S.W. 729; Lee v. Ellis, 253 Pac. 873; Humphrey v. McLain, 292 S.W. 794; Champion v. D'Yarmett, 293 S.W. 587. (2) Respondent has missed his remedy in bringing a suit for services against appellant. He should have brought suit either: (a) For damages for breach of his express joint adventure contract, or (b) for an accounting in equity, or (c) for money had and received. 15 R.C.L. 507, sec. 11; Ann. Cases 1916 A, 1216-1217; Plummer v. Trost, 81 Mo. 431; Blackwell v. Banks Bros., 132 Ga. 845; Forbes v. Butler, 242 Pac. 950; Perry v. Morrison, 247 Pac. 1004; Manget v. Carlton, 130 S.E. 604; Robb v. Moffett, 239 Pac. 674; Crutchfield v. Robinson, 270 S.W. 778; Murphy v. Motion Picture Bureau, 190 N.Y. Supp. 849; Cordia v. Connolly, 261 S.W. 729; Humphrey v. McLain, 292 S.W. 794; Champion v. D'Yarmett, 293 S.W. 587. (3) The contract between appellant and respondent, established by the judicial admission of plaintiff, was an express verbal agreement for a joint adventure by the terms of which they were to share equally on the contingency happening that a profit was in the way of commission received on the consummation of the joint adventure, which contract was abandoned by respondent on the trial of the case below. Count 2 is not one of quantum meruit, but one of express contract of hire and wages. But whether for hire and wages or on quantum meruit, the proof did not support the petition and the demurrer at the close of plaintiff's case, as also at the close of the entire case, should have been sustained. The contract developed at the trial will control and limit the amount and character of the recovery. Plummer v. Trost, 81 Mo. 431; Knighton v. Tufli, 12 Mo. 531; Snell v. Kirby, 3 Mo. 16; Joring v. Harriss, 292 Fed. 974; Manget v. Carlton, 130 S.E. 604; Robb v. Moffett, 239 Pac. 674; Murphy v. Motion Picture Bureau, 190 N.Y. Supp. 849; Humphrey v. McLain, 292 S.W. 794. (4) The evidence proved unquestionably the abandonment by respondent of the joint adventure before the sale of the land, which abandonment is a good defense and precludes his recovery of a money judgment. Knight v. Cecil, 235 Pac. 1107. (5) A joint adventurer who seeks to recover from his coadventurer contribution greater than such coadventurer's share must allege and prove facts entitling him to relief. Ann. Cases 1916 A, 1217; Lamb v. North, 22 Manitoba, 360. (6) A joint adventurer who brings an action for profits has the burden of showing that there are profits to be distributed — that there remain profits in which he is entitled to share which have not been divided. Ann. Cases 1916 A, 1217; Pierce v. McDonald, 153 N.Y. Supp. 810; Joring v. Harriss, 292 Fed. 974; Manget v. Carlton, 130 S.E. 604. (7) Respondent's second count, on which he recovered a money judgment, was not a proper pleading of quantum meruit, but recovery was alleged to be based upon a price agreed to be paid by appellant, a specific promise of a certain sum, and the specific contract so pleaded was an entirely different cause of action than the joint adventure contract and relationship alleged in the first count, abandoned and yet proved at the trial, and, therefore, the respondent's Instructions 1 and 2 on quantum meruit were erroneous and reversible error. One cannot bring an action on a specific contract and recover on quantum meruit. Gillham v. Met. St. Ry., 282 Mo. 118; Shoemaker v. Johnson, 200 Mo. App. 209. (8) The respondent's testimony on the witness stand was a judicial admission that he sought and claimed a recovery only on an express joint adventure contract contingent on profits received instead of quantum meruit. Likewise, the documentary evidence, "Defendants' Exhibit B," was a judicial admission establishing defendants' version of the contract and a complete defense. And the rule of deferring to the jury in their finding on the weight of the evidence does not apply. Bryan v. Millar, 229 Mo. 180. (9) Plaintiff's Instruction 1 was not only confusing, starting out on an express contract of one-half of $5 per acre, etc., and ending on the fair and reasonable value of plaintiff's services, but clearly erroneous as to the reasonable value, inasmuch as the trial court intimated and suggested to the jury that the amount sued for was fair and proper and in fact the total measure of the value and as a fair reward for his services. Shoemaker v. Johnson, 200 Mo. App. 215; Lessender v. Mo. Pac. Railroad, 238 Mo. 265. (10) Instruction 10 requested by the defendant and refused by the court, is a correct instruction, and the only one which covered the phase of the case as to defendant's having received no part of the sale price. It was necessary under any view of the case for the jury to have found that the plaintiff received a commission or at least a direct pecuniary benefit. No instruction given by the court for either side required the jury to find that defendant was benefited. Roskilly v. Steigers, 96 Mo. App. 576.

Jones, Hocker, Sullivan & Angert and Orville Zimmerman for respondent.

(1) The relation between the plaintiff and defendant was that of principal and agent. The evidence shows an understanding, express or implied, between brokers, to divide a commission. 9 C.J. 584; Coffman v. Dyas Realty Co., 176 Mo. App. 692; Handlan v. Miller, 143 Mo. App. 101; 33 C.J. 847. (2) The second count of plaintiff's petition is on quantum meruit, and not on express contract. Stanley v. Whitlow, 181 Mo. App. 464; Klein v. Terminal Railroad, 268 S.W. 660; Glover v. Henderson, 120 Mo. 375; Luzzader v. McCall, 198 S.W. 1144. (3) Where there is an express contract, the plaintiff may waive the contract and recover on quantum, meruit. Henderson v. Mace, 64 Mo. App. 397; Case Note, 38 L.R.A. 369; Daniels v. McDaniels, 184 Mo. App. 355; Norman v. Vandenberg, 157 Mo. App. 492. (4) The defendant cannot take advantage of his own wrong, and since he has denied the contract and refused to collect a commission from his company, he is liable to the plaintiff as though the contract had been fully performed by him. Norman v. Vandenberg, 157 Mo. App. 494; Neenan v. Donoghue, 50 Mo. 495. (5) It is unnecessary that the defendant should have received a part of the purchase price of the property or been beneficially interested in the property in order to make him liable for the commission. He is liable on his contract regardless of the personal benefit to him. 9 C.J. 585, 586; Enright v. Ford, 106 Mo. App. 705. (6) Where a broker is the instrument through which the sale has been effected, no sort of artifice, deceit or fraud will deprive him of his commission. Corder v. O'Neill, 176 Mo. 438. (7) In order to rely upon a revocation or rescission of plaintiff's authority defendant must admit the employment and affirmatively plead such revocation. Reynolds v. Reynolds, 45 Mo. App. 622; Riggins v. Railroad, 73 Mo. 598; Stewart v. Goodrich, 9 Mo. App. 125; Pattison's Missouri Code Pleading, secs. 619, 624. (8) The plaintiff is entitled to interest from the date of the sale on September 27, 1919. Trimble v. Railway Co., 180 Mo. 374; Mecartney v. Trust Co., 274 Mo. 256; Knisely v. Leathe, 178 S.W. 453. The plaintiff having denied the employment and refused to pay the commission, a demand was not necessary. Mahan v. Waters, 60 Mo. 171; Skinker v. Butler County, 112 Mo. 337; Flynn v. Trust Co., 6 Atl. 771; 33 C.J. 237. This holding is analogous to the holding in cases where tender is not required if it would manifestly have been refused. Westlake v. St. Louis, 77 Mo. 47; Deichmann v. Deichmann, 49 Mo. 107; Schilb v. Pendleton, 76 Mo. App. 454; R.S. 1919, sec. 6491.

HIGBEE, C.

On January 4, 1921, plaintiff sued the defendant, Leo R. Buder, in the Circuit Court of the City of St. Louis for $20,167.50, with interest from September 27, 1919, for his commission for procuring and assisting in procuring for the defendant purchasers for a tract of timber land in Dunklin County, containing 13,445 acres, belonging to the Arcadia Timber Company. The case was tried to a jury, a verdict was rendered for the plaintiff on October 31, 1924, in the sum of $26,332.03, and from a judgment thereon the defendant appealed.

The first count of the amended petition declares upon an express contract to pay the plaintiff the sum of $20,167.50 for procuring and assisting in procuring for the defendant purchasers for said tract of land at the price of $55 per acre, with interest from September 27, 1919.

The second count of the amended petition reads:

"And for another and further cause of action, the plaintiff avers that the defendant is justly indebted to plaintiff in the sum of $20,167.50 for services rendered by the plaintiff to the defendant, between January, 1919, and September, 1919, both inclusive, at the special instance and request of defendant, and for which he promised and agreed to pay, in finding, procuring and furnishing, and in aiding and assisting the defendant in finding, procuring and furnishing purchasers at the price of $55 per acre for a certain tract of land situate in Dunklin County, Missouri, comprising about 13,445 acres and then owned by Arcadia Timber Company. The purchasers so found, procured and furnished by the plaintiff were ...