Ingalls v. Neufeld, No. 9236

CourtMissouri Court of Appeals
Writing for the CourtHOGAN; TITUS, C.J., and STONE
Citation487 S.W.2d 52
PartiesAndrew J. INGALLS, Plaintiff-Appellant, v. Newton D. NEUFELD et al., Defendants-Respondents.
Decision Date10 November 1972
Docket NumberNo. 9236

Page 52

487 S.W.2d 52
Andrew J. INGALLS, Plaintiff-Appellant,
v.
Newton D. NEUFELD et al., Defendants-Respondents.
No. 9236.
Missouri Court of Appeals, Springfield District.
Nov. 10, 1972.

Page 53

Ray C. Conrad, Jr., Daniel, Clampett, Ellis, Rittershouse & Dalton, Springfield, for plaintiff-appellant.

James H. Wesley, II, Woolsey, Fisher, Clark & Whiteaker, Springfield, for defendants-respondents.

HOGAN, Judge.

In this action plaintiff sought to recover the sum of $8,500 for services rendered to the defendants in connection with the sale of a business known as Senior Citizens Center, Inc. Defendants filed a general motion to dismiss the petition on the ground that it failed to state a claim upon which relief could be granted. The trial court dismissed the action with prejudice and entered judgment in favor of the defendants and against the plaintiff. Plaintiff has appealed. The sole and determinative question presented is whether the petition shows on its face that plaintiff's recovery is barred by Section 339.160 1 which provides:

'No person . . . engaged within this state in the business or acting in the capacity of a real estate broker or real estate salesman shall bring or maintain an action in any court in this state for the recovery of compensation for services rendered in the buying, selling, exchanging, leasing, renting or negotiating a loan upon any real estate without alleging and proving that such person . . . was a licensed real estate broker or salesman at the time when the alleged cause of action arose.'

Plaintiff pleaded, in substance, that the was a salesman employed to travel over the state selling 'custodial and pharmaceutical supplies'; that one of his customers was Senior Citizens Center, Inc., located at Mansfield, Missouri and owned by the defendants; that Senior Citizens Center, Inc., was a licensed 'nursing home operation', and that on or about November 30, 1968, defendants

Page 54

requested that plaintiff find a buyer for the nursing home and promised to pay him a fee equal to ten per cent of the selling price if he was successful. Plaintiff, 'being in the unique position of knowing the owners and operators of similar type business throughout his territory in the State,' found a buyer and defendants' business was sold for $85,000. Plaintiff further alleged demand and defendants' refusal to pay the agreed commission, and specifically averred: 1) that he was not a real estate broker or agent, and had not claimed to be or held himself out as such; 2) that he did not for compensation sell, offer to sell, buy, offer to buy, exchange or offer to exchange the real estate of others; 3) that he was not associated with any person known as a real estate broker or agent; and 4) that he did locate a buyer for defendants' business, but took no part in negotiating the sale, and was in fact not physically present when the sale was completed. As noted, the defendants filed a general motion to dismiss; the trial court granted the motion and entered judgment for the defendants.

The case lies before us on the petition, defendants' motion and the judgment entered by the court. While the matter has not been briefed or discussed by either party, we have had to inquire and determine whether or not the illegality vel non of plaintiff's contract was properly raised by defendants' motion. The motion, as noted, assigned no specific ground of infirmity, but merely asserted that no claim was stated.

It would be inappropriate, and quite beyond the scope of this opinion, to discuss the derivation and function of Rule 55.33 generally. It is sufficient here to say that a motion to dismiss on the ground of failure to state a claim or defense performs the same function which was performed by a general demurrer prior to its abolishment in 1943, Baysinger v. Hanser, 355 Mo. 1042, 1044, 199 S.W.2d 644, 645--646(1); Abbott v. Seamon, Mo.App., 229 S.W.2d 695, 698(1), and by the terms of Rule 55.33 raises only such objections as appear on the face of the pleadings. Rule 55.10 provides that illegality is a defense which must be affirmatively pleaded. Literally construed, Rule 55.10 would appear to require some specific averment that the countract sued upon was illegal, if the defendant intends to raise that defense, but such a construction would, in our view, be too narrow. No doubt if the illegality arose from some matter extrinsic or collateral to...

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18 practice notes
  • Green Quarries, Inc. v. Raasch, No. WD
    • United States
    • Missouri Court of Appeals
    • July 31, 1984
    ...of action is imperfectly or perhaps defectively stated, but that is not a defect reached by a motion to dismiss." Ingalls v. Neufeld, 487 S.W.2d 52, 56 (Mo.App.1972). It cannot be said the plaintiff can prove no set of facts in support of its claim of unjust enrichment, and under modern ple......
  • Schnabel v. Taft Broadcasting Co., Inc., No. KCD
    • United States
    • Missouri Court of Appeals
    • July 7, 1975
    ...will be sustained if the allegations invoke substantial principles of law which may entitle the pleader to relief. Ingalls v. Neufeld, 487 S.W.2d 52, 54(1--4) (Mo.App.1972). If it clearly appears from the face of the pleading that a cause of action is barred by limitations, a motion to dism......
  • AAA Excavating, Inc. v. Francis Const., Inc., No. 48359
    • United States
    • Court of Appeal of Missouri (US)
    • October 2, 1984
    ...of law which may entitle him to relief, a motion to dismiss for failure to state a claim for relief should be denied. Ingalls v. Neufeld, 487 S.W.2d 52, 56 (Mo.App.1972). Judged by the applicable standards of review, we believe the third party petition should not have been However, we must ......
  • Kipper v. Vokolek, No. 10057
    • United States
    • Missouri Court of Appeals
    • January 13, 1977
    ...of substantive law which may entitle plaintiff to relief, we must conclude the motions were improperly granted. Ingalls v. Neufeld, 487 S.W.2d 52, 54(4) Count I of the petition says the involved minor children are those of plaintiff and defendant Dorothy Vokolek and that by reason of a divo......
  • Request a trial to view additional results
18 cases
  • Green Quarries, Inc. v. Raasch, No. WD
    • United States
    • Missouri Court of Appeals
    • July 31, 1984
    ...of action is imperfectly or perhaps defectively stated, but that is not a defect reached by a motion to dismiss." Ingalls v. Neufeld, 487 S.W.2d 52, 56 (Mo.App.1972). It cannot be said the plaintiff can prove no set of facts in support of its claim of unjust enrichment, and under modern ple......
  • Schnabel v. Taft Broadcasting Co., Inc., No. KCD
    • United States
    • Missouri Court of Appeals
    • July 7, 1975
    ...will be sustained if the allegations invoke substantial principles of law which may entitle the pleader to relief. Ingalls v. Neufeld, 487 S.W.2d 52, 54(1--4) (Mo.App.1972). If it clearly appears from the face of the pleading that a cause of action is barred by limitations, a motion to dism......
  • AAA Excavating, Inc. v. Francis Const., Inc., No. 48359
    • United States
    • Court of Appeal of Missouri (US)
    • October 2, 1984
    ...of law which may entitle him to relief, a motion to dismiss for failure to state a claim for relief should be denied. Ingalls v. Neufeld, 487 S.W.2d 52, 56 (Mo.App.1972). Judged by the applicable standards of review, we believe the third party petition should not have been However, we must ......
  • Kipper v. Vokolek, No. 10057
    • United States
    • Missouri Court of Appeals
    • January 13, 1977
    ...of substantive law which may entitle plaintiff to relief, we must conclude the motions were improperly granted. Ingalls v. Neufeld, 487 S.W.2d 52, 54(4) Count I of the petition says the involved minor children are those of plaintiff and defendant Dorothy Vokolek and that by reason of a divo......
  • Request a trial to view additional results

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