A. J. Meyer & Co. v. Schulte

• Decision Date: 19 June 1945
• Docket Number: No. 26806.,26806.
• Citation: 189 S.W.2d 183
• Parties: A. J. MEYER & CO. v. SCHULTE et al.
• Court: Missouri Court of Appeals

189 S.W.2d 183

A. J. MEYER & CO. v. SCHULTE et al.

No. 26806.

St. Louis Court of Appeals. Missouri.

June 19, 1945.

Rehearing Denied September 7, 1945.

Appeal from Circuit Court, St. Louis County; Raymond E. LaDriere, Judge.

"Not to be reported in State Reports."

Action by A. J. Meyer & Company, a corporation, against Walter L. Schulte and wife to recover a commission for services rendered in procuring a sale of defendants' realty. Judgment for defendants, and plaintiff appeals.

Affirmed.

Edward C. Schneider, of St. Louis, for appellant.

Foster H. Brown and Claude P. Berry, both of St. Louis, for respondents.

McCULLEN, Judge.

This suit was brought by A. J. Meyer & Company, a corporation engaged in the real estate business, as plaintiff, to recover the sum of $475 from defendants as commission for services alleged to have been rendered by plaintiff to defendants in procuring a sale of property owned by defendants. A trial before the court alone, a jury having been waived, resulted in a finding and judgment in favor of defendants. Plaintiff duly appealed.

The petition of plaintiff alleged that on or about May 15, 1942, and thereafter, plaintiff performed services for and on behalf of defendants in procuring and producing Xenia Taylor, a purchaser who was ready, willing and able to purchase, for the sum of $9,500, the property owned by defendants. The property was described in plaintiff's petition as follows: "Lot Eight (8) in Block Thirty-one (31) of St. Louis Hills and in Block 6219 of the City of St. Louis, fronting thirty-eight (38) feet on the east line of Prague Avenue by a depth eastwardly of One Hundred Twenty (120) Feet to an alley, together with improvements thereon, known and numbered as 4732 Prague Avenue, St. Louis, Missouri".

The petition alleged that said real estate was sold to Xenia Taylor, the purchaser procured and produced by plaintiff, and that plaintiff's services were rendered to defendants at their special instance and request; that the reasonable value of said services was $475, representing five per cent of the amount of the sale price involved and that plaintiff had received no compensation whatever for the services rendered.

The answer of defendants was a general denial.

Eugene A. Benz testified as a witness for plaintiff that he was employed by plaintiff, having been connected with the plaintiff company for eight years as a real estate salesman; that he became acquainted with defendants about May 21, 1942; that on said date he took Mr. and Mrs. Xenia Taylor to the Schulte home at 4732 Prague Avenue in the City of St. Louis; that he and Charles Martel, who at that time was a real estate salesman for the Federer Realty Company, had spoken to Mrs. Schulte during that day and she told them that they (the Schultes) wanted to sell their place and would take $9,850 for it; that he (the witness) happened to go to the Schulte home after noticing a "For Sale" sign on the property; that he and Martel were jointly trying to find a house for Mr. and Mrs. Taylor, who were looking for a house to purchase; that on the morning of May 21 he and Martel and Mr. and Mrs. Taylor went to the home of the defendants Schulte; that Mrs. Schulte was there but Mr. Schulte was not; that he and Martel showed the Taylors through the Schulte home, after which he and Martel stood out on the sidewalk with Mr. and Mrs. Taylor and that Mr. Taylor said he would be down to the witness's office within an hour with a check for earnest money to purchase the property; that he, the witness, had given Mr. Taylor a price of $9,750 as the sale price of the Schulte house. The witness further testified that when he talked with Mrs. Schulte that morning she gave him the sale price of the property which, according to the witness, was "$9,850, or $9,750, whatever it was, I guess it was $9,750"; that he asked Mrs. Schulte if she understood the commission would be five per cent and that she said, "Yes"; that Mrs. Schulte also told him they had a prior contract with Williams & Calmer Company to sell the property for them but that contract had expired; that later on that morning Mr. Taylor came to the witness's office and deposited his earnest money check and signed an offer of $9,750 for the property, all cash; that Mrs. Taylor did not sign the earnest money contract; that after the earnest money contract was signed by Mr. Taylor the witness phoned Mrs. Schulte and asked when Mr. Schulte would be home and was told he would be home at 6 o'clock that evening; that the witness and Martel then went to the Schulte home at 6 o'clock and there met Mr. Schulte; that he had never met Mr. Schulte prior to that time; that he and Martel presented their contract to Mr. Schulte, who read it over and said it was all right but that it was an easy deal and he thought the witness and Martel were entitled to no more than half of the commission; that he and Martel disagreed with Schulte, and the witness suggested that Mr. Schulte think it over until the next morning; that the next morning, about 10 o'clock, Mr. Schulte phoned him and repeated what he had said the night before:

"that he would accept the deal if we would take a half commission.

"Q. That was two and one-half per cent of the $9750? A. Yes, We told him, `No, we wouldn't do that.'"

The witness further testified that he told Mr. Schulte that there would be no deal if they had to split their commission; that a few days later he heard that Mr. Schulte had sold his home to Mr. Taylor for $9,500; that he did not call the Schultes after that.

On cross-examination the witness, referring to the visit made by him and Martel with Mr. and Mrs. Taylor to the Schulte home, testified: "Q. And you went there, taking the Taylors there, with a view to finding a place for them? A. We two men were working together and our object in going three was to find a place for the Taylors; exactly."

Referring to defendants' Exhibit 1, which is the sale contract dated May 21, 1942, signed by Xenia L. Taylor as the proposed purchaser of the Schulte property, the witness testified that when he showed it to Mr. Schulte, Mr. Schulte said that it was all right provided he (the witness) and Martel would agree to take half of the commission; that Mr. Schulte did not say that he wanted $9,500 net for the property; that Schulte was talking about cutting the commission in half; that if Schulte had said "$9,500 net," he, the witness, would have gone back and tried to raise Mr. Taylor another hundred dollars and make the deal.

Charles Martel testified on behalf of plaintiff that he had been in the real estate business for about ten years; that he was connected with the Federer Realty Company; that he met Mr. and Mrs. Taylor some time in May, 1942; that he met the Schultes by taking Mrs. Taylor over to their residence. The witness corroborated the testimony of Mr. Benz with respect to the manner in which he and Benz took Mr. and Mrs. Taylor out to the Schulte home with a view to having the Taylors purchase the Schulte home. He said that they took the Taylors through the Schulte home and they liked it very well; that Mr. Benz drew up a contract and he and Benz went out to the Schulte home that evening and presented the contract to Mr. Schulte and that Mr. Schulte said: "I will have to think about this until tomorrow." The witness further testified in this connection:

"Q. Was anything said at that time about the commission, with Mr. Schulte?

A. Mr. Schulte?

"Q. Yes, sir. A. The conversation was with Mrs. Schulte about the commission."

The witness further testified that Mr. Schulte asked them how much the commission amounted to and that they told him four hundred and some odd dollars; that Schulte said: "That's too much commission for the work you have done." The witness further testified:

"Q. Was there any question about the sales price of $9750 by the Schultes that evening, when you presented the earnest money contract? A. No, they didn't seem to be any objection at all on the sales price, the objection was to paying the commission. The full commission of 5%.

"Q. Was anything said about splitting the commission? A. He said, `You boys haven't done much work on that; you ought to take half.' Mr. Benz told him, `No, our commission is universal, five per cent all over the United States.'

"Q. Did he suggest that he would take $9500 net at that time? A. I don't recall it."

Plaintiff introduced in evidence the deposition of defendant Walter L. Schulte. The testimony in the deposition was to the effect that Mr. Schulte found out the Taylors were interested in his property on Prague Avenue through the medium of the purchase contract presented by Mr. Martel of the Federer Realty Company and Mr. Benz of A. J. Meyer & Company; that Benz and Martel presented the earnest money contract to him on the evening of May 21, 1942, at his home; that the first time he had met the two gentlemen was at that time; that up to that time he had never met Mr. or Mrs. Taylor; that he looked over the proposed contract and that the sale price therein was listed as $9,750, the terms of the sale were cash, and that A. J. Meyer & Company would charge a five per cent commission on $9,750. The witness further testified that he advised both Benz and Martel that the sale price of the property was incorrect; that he had never stated any such price, and "that the price that I was interested in was $9,500 net to me. * * * that I was only interested on a $9,500 net to me"; that after further discussion they asked him to think the matter over and call them the next morning; that he called Benz the next morning and told him he was still of the same opinion; that he wanted $9,500 net and offered to split the commission with Benz "to net me that figure." The witness said in this connection: "In other words, I was unwilling to sell my property for $9750 and pay five per cent commission. Up to that time I had not agreed with Mr. Martel or with Mr. Benz of...