Keeney v. Freeman

Decision Date03 June 1941
Citation151 S.W.2d 532,236 Mo.App. 260
PartiesR. M. KEENEY AND HENRY J. TOELLE, DOING BUSINESS AS KEENEY-TOELLE REALTY COMPANY, RESPONDENTS, v. IRWIN FREEMAN, APPELLANT
CourtMissouri Court of Appeals

Appeal from Circuit Court of St. Louis County.--Hon. David J Murphy, Judge.

AFFIRMED.

Judgment affirmed.

A Lowell Morris for appellant.

(1) The court erred in refusing to permit the consideration of the Evidence by the jury, because the evidence was conflicting and it was before the jury that the property was the property of Marjorie Freeman, and not the defendant. Sec. 3390, R. S. Mo. 1939. Nor could plaintiffs recover on any theory of quantum meruit, since the action was on express contract. Bay v. Bedwell, 21 S.W.2d 203; Haverstick v. Brookshire, 28 S.W.2d 432; Carter v. Farmers Bank of Chariton Co., 108 S.W.2d 152. (2) Respondents' Instruction No. I was erroneous because it directed a verdict, but entirely ignored the defendant's evidence, in the absence of a pleaded defense, if pleaded. Mutual Life of Illinois v. McKinnes, 47 S.W.2d 564; Sells v. Fireside Life Association, 66 S.W.2d 955.

David F. Monahan and Rudolph K. Schurr for respondents.

The action of the court below, at the close of the whole case, in directing a verdict and judgment for plaintiffs under the law and the evidence was proper. Butler v. Moser, 226 S.W. 990, 991; Curry v. Whitmore, 84 S.W. 1131, 1132; "Brokers," 12 C. J. Secundum, p. 220; Confer Bros. v. Colbrath, 183 N.W. 524, 149 Minn. 259.

McCULLEN, J. Hughes, P. J., and Anderson, J., concur.

OPINION

McCULLEN, J.

--This suit was instituted in a justice of the peace court in the City of St. Louis by respondents, as plaintiffs, against appellant, as defendant, to recover the amount of a commission alleged to be due plaintiffs under a contract for the sale of real estate. A judgment for plaintiffs was rendered and defendant appealed to the Circuit Court of the City of St. Louis where a trial before the court and a jury resulted in a verdict and judgment in favor of plaintiffs in the sum of $ 225. Defendant duly appealed to this court.

The case was tried on a statement filed by plaintiffs alleging the amount to be due under the contract sued on. No other pleadings were filed on behalf of either plaintiffs or defendant.

The evidence shows that plaintiffs were partners in the real estate business in the City of St. Louis; that defendant entered into a real estate contract with plaintiffs whereby plaintiffs were given a six months' exclusive agency to sell property located at 6338 Amelia Avenue in the City of St. Louis, being a lot forty feet by one hundred and fifteen feet, with a brick bungalow thereon. The contract was dated August 11, 1938. By its terms, defendant agreed that, in the event the said real estate was sold within six months from the date thereof, he would pay to plaintiffs five per cent on the gross amount of the sale up to and including $ 20,000.

The evidence shows without dispute that about the middle of December, 1938, and within six months after the contract was made, the property was sold to one Benjamin Harrison Matthews for the sum of $ 4500. The evidence further shows without dispute that plaintiffs advertised the property for sale, placed a for sale sign thereon, and took a number of parties out to the property and showed it to them in their efforts to sell it. Although they did not actually succeed in selling the property, they continued their efforts to sell it up until the time they learned that it had been sold to Mr. Matthews.

Defendant admitted that he signed the contract, which was introduced in evidence as plaintiffs' Exhibit A, after a former contract which had been signed by both him and his wife, Marjorie Freeman, concerning the same property had expired. The evidence shows that the former contract was in all respects as to its terms the same as the one upon which plaintiffs' suit is based but of a prior date. Defendant testified that the property described in the contract was in the name of Marjorie Freeman, his wife, on the date of the signing of the contract sued on herein; that it was never in his name. Defendant further testified that Mr. Matthews bought the property about two weeks after he had visited defendant at his home where he talked with defendant about purchasing it.

Mr. Matthews was called as a witness for defendant and was asked a number of questions to which the court sustained objections, whereupon defendants made the following offer of proof:

"The defendant offered to prove by the witness, duly sworn and on the stand, and who has identified himself as the purchaser of the property in question, that the stipulation and provision of the negotiations at the time of the transaction were, that, under no circumstances, would he be interested in a deal for the property if it were handled through the Keeney-Toelle Real Estate Company, or any other real estate company."

The court sustained plaintiffs' objections to such offered testimony and ruled it out.

Defendant offered testimony by Anthony P. Huebner, a brother-in-law of defendant (a brother of defendant's wife), but it was ruled out by the court on objection of plaintiffs. Defendant then made an offer of proof to the effect that the witness would testify that, due to an unpleasant experience the said witness had with plaintiffs in a real estate transaction, he had advised defendant's wife that she should not sign the contract (plaintiffs' Exhibit A); and that thereafter the sister of the witness, acting under said advice, refused to enter into a contract or have any dealings with plaintiffs. Plaintiffs' objection to said offer of proof was sustained and the offered testimony was also ruled out by the court.

Defendant offered evidence to show that an effort was made by him to adjust by compromise the commission claimed by plaintiffs. His reasons for the offered compromise were, in substance, that there had been no great or extended effort by plaintiffs to sell the property, and that the property was purchased by the father of an adjacent neighbor.

Plaintiff Ralph M. Keeney, after testifying that he had taken a number of parties out to the property in an effort to sell it, stated that he learned that the property had been sold when defendant called at his office about the 18th or 19th of November, 1938, and told him that he had a deal on for the property; that shortly thereafter the witness told defendant that when he got ready to close the deal he, plaintiff, would be glad to look after his interests and take care of the deal in the regular manner; that defendant told him the papers were to be drawn by the Pine Lawn Bank because the folks who were buying the property were making a loan there and wanted to close the deal there; that the witness again told defendant that when he was ready to close the deal he, witness, would be glad to go out and see that everything was done right and asked defendant to notify him so that he could attend to it for him; that defendant never did call him or notify him; that later the witness saw in the Daily Record where the property had been transferred, whereupon he wrote defendant a letter requesting payment of the regular commission but that it was never paid.

At the close of all the evidence, the court gave, at the request of plaintiffs, an instruction telling the jury that under the law and the evidence their verdict must be in favor of plaintiffs and against defendant. In accordance with the instruction given by the court, the jury returned a verdict in favor of plaintiffs in the sum of $ 225.

Defendant contends that the court erred in refusing to permit consideration of the evidence by the jury because he says the evidence was conflicting and it was before the jury that the property was the property of Marjorie Freeman and not the defendant. In other words, as we understand this point, defendant contends that the court erred in directing a verdict for plaintiffs because the evidence showed that the property in question was the property of Marjorie Freeman, defendant's wife, and not the property of defendant himself. We are of the opinion that such evidence as defendant adduced as...

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4 cases
  • Maxie v. Gulf, M. & O. R. Co.
    • United States
    • Missouri Supreme Court
    • June 9, 1947
    ... ... 114, 119 S.W. 622; Central States Savings & Loan Assn. v ... U.S. Fidelity & Guaranty Co., 334 Mo. 580, 66 S.W.2d ... 550; Keeney & Toelle v. Freeman, 236 Mo.App. 260, ... 159 S.W.2d 532. (6) The fact that these box-car doors ... belonged to defendant, were a part of its ... ...
  • Lane v. St. Louis Union Trust Co.
    • United States
    • Missouri Supreme Court
    • March 10, 1947
    ... ... the domicile of the owner at death. [11 Am. Jur., p. 379, ... section 92; 88 A.L.R. 862, II; Richardson v. Lewis, ... 21 Mo.App. 531; Keeney v. Freeman, 236 Mo.App. 260, ... 151 S.W.2d 532; Comerford v. Coulter, 82 Mo.App ... 362, 365; 30 C.J., p. 508, section 8.] This rule is confirmed ... ...
  • Chamberlain v. Grisham
    • United States
    • Missouri Court of Appeals
    • May 19, 1949
    ... ... commission to plaintiff on any sale whether made by plaintiff ... or defendant.' ...          Respondents ... also cite Keeney v. Freeman, 236 Mo.App. 260, 151 ... S.W.2d 532, 535. That was an opinion by the St. Louis Court ... of Appeals. The facts, as stated by Judge ... ...
  • Jaeglin v. Moakley
    • United States
    • Missouri Court of Appeals
    • June 3, 1941
    ... ... 111, R. S ... Mo. 1929; In re Estate of Ryan, 174 Mo.App. 202, ... 212, 213, 214; In re Ferguson Estate, 206 Mo. 203, ... 206, 207, 208; Keeney v. McVoy, 206 Mo. 42, l. c. 65 ... through 74. (2) The clause in Section 111, Revised Statutes ... of Missouri 1929, providing that minor children ... ...

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