Jordan v. Daniels

• Decision Date: 07 April 1930
• Parties: J. E. JORDAN, JR., RESPONDENT, v. MORRIS DANIELS, APPELLANT
• Court: Kansas Court of Appeals

27 S.W.2d 1052

224 Mo.App. 749

J. E. JORDAN, JR., RESPONDENT, v. MORRIS DANIELS, APPELLANT

Court of Appeals of Missouri, Kansas City

April 7, 1930

Appeal from Circuit Court of Jackson County.--Hon. Darius A. Brown Judge.

REVERSED AND REMANDED.

Judgment reversed and remanded.

Maurice J. O'Sullivan and O. H. Stevens for respondent.

Watson Gage & Ess for appellant.

BOYER C. Barnett, C., concurs. Trimble, P. J., absent.

OPINION

BOYER, C.

Plaintiff sued to recover $ 3800 with interest alleged to be due as a commission earned in obtaining a person ready, able, and willing to enter into a ninety-nine year lease upon property owned by defendant.

The petition alleges that in the month of February, 1925, defendant owned, or claimed to own, real estate in Kansas City, Missouri, known as the northeast corner of Armour Boulevard and Broadway; that defendant employed plaintiff to procure a lessee for a period of ninety-nine years and agreed to pay plaintiff for said services the sum of $ 3800, alleged to be the reasonable value thereof; that plaintiff did procure for defendant a person ready, able, and willing to enter into and accept from defendant said lease on the terms and conditions and provisions fixed by defendant, and on which terms plaintiff was authorized to procure said lessee; that plaintiff fully performed all of the work required of him, and that defendant has wholly failed and refused to pay said sum or any part thereof.

The answer was a general denial.

The petition was filed on the 23rd day of June, 1926. The case was tried, and a verdict by nine jurors was returned on the 15th day of March, 1929, in the total sum of $ 4370. The case was submitted to the jury under plaintiff's main instruction authorizing a recovery upon a finding of the facts required to be found in order to entitle plaintiff to a verdict under the petition.

The errors assigned and points made on appeal are (1) that the court erred in refusing defendant's demurrer to the evidence offered at the close of the case, (2) in rejecting competent evidence, and (3) in refusing to give defendant's offered instructions D 5 and D 9. A statement of facts will be made in view of these assignments.

The evidence on behalf of plaintiff tended to prove that plaintiff had been engaged in the real estate business for two or three years at Kansas City, in association with other parties; that in January, 1925, he called upon defendant to ascertain whether he desired to lease the property in question for a term of ninety-nine years; that defendant informed him that he would be glad to, but that everybody he talked to wanted to buy the property, but that he did not want to sell it, but desired to make a ninety-nine year lease; and stated that the terms would be $ 7500 per annum for five years; $ 8500 per annum for five years, and $ 10,000 per annum for the balance of the term; that taxes were to be paid by the lessee; and purchase option was quoted at $ 150,000 during the first five years; $ 175,000 for the next five years; $ 200,000 for the next ten years, after which time the option would expire; that $ 7500 was to be deposited as security on the lease; that defendant later repeated the terms to plaintiff's associates who desired to verify them; that defendant said he would be tickled to death if plaintiff could find a man willing to handle it that way; that defendant asked what the commission would be and was informed that it amounted to $ 3875; that was the customary charge of five per cent for the first $ 5000, and two and one-half per cent on the balance of the minimum sale price; that defendant stated that was all right, and that no other agent was at work upon the deal; that shortly thereafter plaintiff reported to defendant that he had a customer; that defendant was enthused over the deal and took plaintiff to see defendant's lawyer in order to draw up the lease; that he informed plaintiff to have the lawyer draw up the lease on the terms given; that the attorney stated he had talked to Mr. Daniels about it and informed plaintiff that he knew about the terms; that the attorney quoted the same terms to him that the defendant had stated, and agreed to draw the lease and have it ready as soon as possible; that plaintiff subsequently inquired repeatedly about the lease; that defendant informed him it was not finished; that the attorney was working on it and assured plaintiff that it would be ready in a day or so, and not to worry, that it was being drawn at that time; that he saw defendant every day for a week and the conversation was practically the same; that he repeatedly inquired of the attorney about the lease and was put off from day to day with the statement that it would be ready tomorrow; that continued for a week or ten days; that during the negotiations a building clause was required by which $ 100,000 was required to be expended upon a new building; that this was reported to plaintiff's client and accepted by him; that he had accepted all the terms and conditions required by defendant, but no draft of a lease was ever furnished or presented to plaintiff; and finally defendant informed plaintiff that he would "have to let the deal drop where it is" and that he would have to turn his man down; that plaintiff informed defendant that he had obtained everything that defendant wanted and that his man had stood in line and that defendant replied: "I have got to turn him down anyway." And when asked what was the matter, defendant said: "Well, he is a Jew. That is the main thing. I would rather not deal with a Jew, just to be frank with you, I don't want to deal with a Jew." That plaintiff then proposed another man who would take it on the same terms, and defendant said: "Well, Jordan, to be frank with you, here is the way it is. Barat Guignon came to me and wanted this property. He has been a friend of mine a long time and he came to me and told me he would like to have the property and I just can't turn him down at all." And he further said: "Besides, if I deal with Barat Guignon I won't have a commission to pay because he is in with Jaccard on the deal and has been quite friendly with me and I just can't turn him down."

After this, plaintiff demanded his commission and stated to defendant that he thought he had earned it and that it was due. Defendant said: "Well, you can try and get it;" and if plaintiff sued him that he was protected. "Your damage suit won't worry me for commission. If commission is collected I won't pay it. It won't be me that will have to pay the commission;" that he was protected by a letter from Mr. Guignon. Defendant's attorney, to whom the plaintiff had been referred, did prepare a lease of the character in question, but when it was completed delivered it to other parties, and defendant executed it to the Hampton Realty Company and paid a commission of $ 3800 to a real estate agency in which Mr. Guignon was interested; Mr. Guignon was also interested in the company that took the lease, and stated in effect that if this lawsuit resulted adversely to the defendant that he would be forced to indemnify defendant on account of it.

Plaintiff had the assistance of his associates in his efforts to obtain a lessee and had agreed to compensate them for their assistance by paying them an amount equal to a stated proportion of his commission. The proposed lessee obtained by plaintiff testified that he was willing and anxious to obtain the lease on the terms stated, and that he had agreed to accept all terms proposed; and in reference to additional requirements that might be made, that he expected to meet the owner's request; that no lease was ever submitted; that he owned $ 35,000 in securities and a theater, the income of which was sufficient to take care of the lease, and that he was able to erect a $ 100,000 building; that while the lease was to be taken in his name, he had made arrangements to associate two other men with himself, one of whom was worth a quarter of a million dollars. The evidence tended to show that the proposed lessee was financially able and could obtain ample funds to carry out all of the proposed terms of the lease, and was anxious to obtain it; and that he had agreed to everything that had been presented to him. The evidence further tends to show that plaintiff's associates made repeated efforts to obtain a draft of the lease from defendant's attorney; that they were put off from day to day with the statement that it was not ready to submit, and they never did obtain a proposed draft of the lease. It was admitted by defendant's counsel that defendant leased the property to another before the draft of the lease was completed for plaintiff or plaintiff's client.

Plaintiff upon being recalled further testified that he submitted the name of his prospective lessee to defendant and that he went over to see defendant's attorney after the proposed lessee had been accepted. Defendant's attorney testified that defendant brought plaintiff to his office; that he had discussed provisions of a lease with defendant long before; that the details were to be left to him; that plaintiff's associates saw him every two or 3 days; that he never furnished a copy of the lease to plaintiff, but under the instruction of defendant, delivered it to Mr. Guignon and that the only draft of a lease drawn was to Jaccard or Hampton Realty Company.

Defendant testified that at the time the subject was discussed with plaintiff that he did not own the property, but became owner thereof on February 4, 1925; that he submitted to plaintiff "tentative terms" and stated that the man plaintiff would procure would have to be acceptable to him; that plaintiff's associates called upon him to verify the tentative terms; that he accompani...