Jones & Co. v. Bishop, 13026

• Decision Date: 01 February 1984
• Docket Number: No. 13026,13026
• Citation: 664 S.W.2d 253
• Court: Missouri Court of Appeals
• Parties: JONES & COMPANY, Plaintiff-Respondent, v. John BISHOP, Defendant-Appellant.

Page 253

664 S.W.2d 253

JONES & COMPANY, Plaintiff-Respondent, v. John BISHOP, Defendant-Appellant.

No. 13026.

Missouri Court of Appeals,

Southern District,

Division Two.

Feb. 1, 1984.

John R. Lewis, Springfield, for plaintiff-respondent.

Thomas E. Klinginsmith, Carthage, Thomas L. Williams, Roberts, Fleischaker & Scott, Joplin, for defendant-appellant.

PREWITT, Judge.

Plaintiff sued defendant, seeking commissions under two "exclusive right to sell" contracts. Following nonjury trial, the trial court found that plaintiff was entitled to a commission of $55,000.00, less $5,000.00 previously received. It entered judgment of $50,000.00 for plaintiff. Defendant appeals.

The trial court made a detailed finding of fact which is supported by the evidence and not questioned by either party. The portions relevant to the questions presented on appeal state:

"Plaintiff is a Missouri corporation, of Springfield, Missouri, licensed as a real estate broker but not licensed under the Uniform Securities Act of Missouri. Defendant, with his wife, was the sole stockholder of Silvertrol Industries [Inc., hereafter Silvertrol] of Pierce City, Missouri, and Tubular Metal Displacement, Inc., [hereafter Tubular] of Webb City, Missouri.

On February 13, 1980, plaintiff and defendant entered into two listing agreements granting plaintiff the exclusive right to sell Silvertrol for $2,000,000.00 and Tubular for $650,000.00. These agreements provided for expiration on August 13, 1980, but contained the following provision: 'If the property is sold, leased or exchanged during the term of this listing, or if sold, leased or exchanged to anyone within 180 days after expiration or cancellation, who has been shown said property during the term of this listing, we agree to pay a ten percent fee on the gross sale price of the property, provided that this clause does not apply if seller lists the property with another real estate agency.'

On June 18, 1980, a 'Real Estate Sale Contract' was entered into between defendant and Joseph N. Jaeggers, Jr., for the sale of both Silvertrol and Tubular for a price of $2,330,000.00, contingent upon Jaeggers obtaining satisfactory financing on or before August 31, 1980. This initial contract was replaced by a more detailed agreement signed on June 27, 1980, but still contingent upon satisfactory financing by August 31, 1980.

On July 16, 1980, the defendant and Jaeggers executed what they called a 'Take Over Agreement,' which provided that Jaeggers would assume management and operation of the two companies pending the completion of the sale. On this same date, Jaeggers and his wife executed two notes payable to defendant and his wife in the amounts of $350,000.00 and $1,960,000.00.

Beginning after June 18, 1980, the plaintiff was assisting Jaeggers in attempting to find satisfactory financing and this assistance continued after Jaeggers took possession of Silvertrol and Tubular on July 16, 1980. On August 26, 1980, Jaeggers and defendant, acting by his wife, executed an 'Addendum to Sales Contract,' which extended the date for obtaining financing to December 1, 1980, and extended the closing date to January 1, 1981.

* * *

* * *

On December 12, 1980, defendant and his wife, Jaeggers and his wife, and Tubular executed an 'Agreement to Rescind Agreements to Restore Parties and Contract for Sale of Tubular Metal Products, Incorporated.' The sale price for the Tubular assets set out in this agreement is $550,000.00. On December 23, 1980, defendant and his wife and Tubular executed a bill of sale and a warranty deed conveying the assets of Tubular to Jaeggers Custom Metal Machine Incorporated."

Real estate and other assets were transferred by the deed and bill of sale and there is no indication that any corporate stock was sold. The agreement of December 12, 1980 stated that "Jaggers contemplates the formation of a Missouri corporation and any of Jaggers' rights and liabilities hereunder may be assigned to such corporation". In the record his name is shown sometimes as "Jaggers" and sometimes as "Jaeggers". There was evidence that plaintiff's employees sent him information regarding Silvertrol and Tubular, showed him their tangible assets and worked with him to secure financing to purchase them.

Defendant's first point contends that the trial court erred in allowing plaintiff to introduce evidence of the December 12, 1980, agreement to sell assets of Tubular to Jaggers. He contends it was beyond the scope of the pleadings.

Plaintiff stated in its petition that it was entitled to a commission "by either furnishing a buyer to the Defendant who was ready, willing and able to perform the terms of the contracts" plaintiff had with defendant or "alternatively, Plaintiff has performed all the terms and conditions of its contracts ... by supplying to Defendant a buyer who has fully consummated the terms of the sale as denominated in the sales contract marked Exhibit C attached hereto". Exhibit C was the contract of June 18, 1980, and defendant contends that plaintiff's petition only alleged that its commission was due because of it.

We believe that evidence of the December agreement was admissible. It was a part of the continuing transactions between Jaggers and defendant and was relevant as to whether plaintiff produced a ready, willing and able purchaser and as to the amount of plaintiff's damages. The general rule, applicable here, is that if a real estate broker procures a purchaser who is ready, willing and able to buy on the vendor's terms, it is entitled to a commission. Marrs v. Twitty, 635 S.W.2d 374, 376 (Mo.App.1982). Point one is denied.

We next consider defendant's contention that the trial court erred in finding for plaintiff because plaintiff failed to establish that it was a registered broker-dealer under the Missouri Uniform Securities Act, Chapter 409, RSMo 1978. Defendant asserts that as Tubular and Silvertrol were shown as corporations in the real estate listing contracts, plaintiff intended to receive a commission based on the sale of corporate stock. Section 409.201, RSMo 1978, makes it unlawful for any person to transact business in Missouri as a broker-dealer unless registered as one under the Act. The trial court denied this contention, noting "the listing agreements do not specify that the transaction was to be a sale of stock and in any event the sale that was actually made was a sale of physical assets."

As authority under this point defendant cites § 409.201, Greer v. Zurich Insurance Company, 441 S.W.2d 15 (Mo.1969), and King v....