Ingalls v. Neufeld

• Citation: 487 S.W.2d 52
• Decision Date: 10 November 1972
• Docket Number: No. 9236,9236
• Parties: Andrew J. INGALLS, Plaintiff-Appellant, v. Newton D. NEUFELD et al., Defendants-Respondents.
• Court: Court of Appeal of Missouri (US)

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.

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 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 the contract, some affirmative pleading or motion showing the illegality would be required; on the other hand, courts take judicial notice of public statutes, and when the contract pleaded shows on its face that it was made in contravention of a statute, a general allegation that the petition states no actionable claim raises that defect, and no affirmative plea is necessary. Shohoney v. Quincy, O. & K.C.R.Co., 231 Mo. 131, 146--147, 132 S.W. 1059, 1063--1064(6) (7), error dismissed 223 U.S. 705, 32 S.Ct. 517, 56 L.Ed. 621; 5 Wright and Miller, Federal Practice and Procedure, § 1357, pp. 605--606 (1969); 17 Am.Jur.2d Contracts, § 237, pp. 619--620. We have therefore concluded, as noted above, that the question before us is whether or not plaintiff's contract with defendants, as pleaded, violates the regulatory sections of Chapter 339 so as to deny plaintiff the aid of the courts in enforcing it. The petition is, of course, to be construed favorably to the plaintiff, giving him the benefit of every reasonable and fair intendment in view of the facts alleged, Jacobs v. Jacobs, Mo., 272 S.W.2d 185, 188(2, 3), and if the pleader's allegations invoke principles of substantive law which may entitle the plaintiff to relief, the motion was improperly granted. Boyer v. Guidicy Marble, Terrazzo & Tile Co., Mo., 246 S.W.2d 742, 744(1).

The defendants maintain that Section 339.160 applies to all transactions which include or involve the sale of anything which could be considered an interest in real property. The term 'real estate', they say, is not qualified, limited or restricted in any manner by any of the provisions of Chapter 339. They further argue that plaintiff's original petition--which is not in the record--shows that the sale of Senior Citizens Center did include realty, and in any case, since the sale of a nursing home of logical necessity includes the transfer of some interest in real property, plaintiff's action is barred by Section 339.160. Plaintiff's position is that the regulatory provisions of Chapter 339 do not and were not intended to apply to this isolated transaction in which he was acting only as a 'business chance broker', that is as a broker who undertakes to sell a business as a going concern, including the good will, inventory and fixtures of the business. ²

As to defendants' arguments, it may be conceded that our courts have construed Chapter 339 very strictly, and have trenchantly turned aside various attempts to avoid or erode the provisions of Sections 339.150 and 339.160. See, for example, Dolan v. Ramacciotti, Mo., 462 S.W.2d 812; Miller Nationwide Real Estate Corporation v. Sikeston Motel Corporation, Mo., 418 S.W.2d 173; Schoene v. Hickam, Mo., 397 S.W.2d 596; Gilbert v. Edwards, Mo.App., 276 S.W.2d 611. Nevertheless, it was plain in each of those cases that the predominant feature of the particular transaction was the sale or lease of real property, and as we read those precedents, they do not reach nor decide the precise question here presented. Concerning defendants' argument that plaintiff's original petition shows real estate to be involved, it may be granted abandoned pleadings may be used as admissions against...