Keeshan v. Embassy Inv. Co.
| Decision Date | 02 July 1957 |
| Docket Number | No. 29659,29659 |
| Parties | John KEESHAN (Plaintiff), Appellant, v. EMBASSY INVESTMENT COMPANY, a Corporation, Sam Koplar, and Frank X. Jones (Defendants), Respondents. |
| Court | Missouri Court of Appeals |
James J. Milligan, St. Louis, for appellant.
Jones, Hocker, Grand, Peper, Martin & Roudebush, and Harold B. Bamburg, St. Louis, for respondents Embassy Investment Co. and Sam Koplar.
Paul F. Plummer, St. Louis, for respondent Frank X. Jones.
In count one of his petition, John Keeshan, plaintiff, appellant, seeks to recover $5,250 alleged to be the reasonable value of his services in procuring a loan for the defendants; in count two of the petition, voluntarily dismissed at the outset of the trial, plaintiff sought recovery of $12,500 as a real estate broker's commission. At the conclusion of plaintiff's case, upon motion, the court directed a verdict for all of the defendant. From the ensuing judgment plaintiff has brought the case to this court on appeal. The meritorious point here presented is focused on the sufficiency of the proof to make a jury case. We therefore will consider the evidence in the light most favorable to plaintiff.
Keeshan is a real estate broker, and has specialized in 'mortgage loans'. He had known defendant Frank X. Jones (also a real estate broker) for six years prior to the trial. In the early part of 1953, plaintiff was informed by Jones that he had the exclusive right to sell the Embassy Apartments located at Washington and Union Boulevards, in St. Louis, Missouri. At that time an oral arrangement or understanding was entered into between plaintiff and Jones, the substance of which was that plaintiff could undertake to sell the property, but the names of prospective buyers would have to be first registered with Jones, who would in turn submit the names of the prospects to defendant Sam Koplar (sometimes referred to as Koplar), said to be the principal stockholder and managing officer of defendant Embassy Investment Company (sometimes referred to as Embassy). If Koplar's approval was obtained, plaintiff was at liberty to exhibit the property to his prospect. In the event of a sale the commission was to be split three ways--one-third to Harry Rhodes, who, according to plaintiff's testimony, had assisted Jones in securing the exclusive contract, one-third to Jones, and one-third to plaintiff. A price of $750,000 had been placed on the property by the owner, and there was an indebtedness thereon in the form of a first deed of trust for 'about $280,000.00'.
Following the understanding between plaintiff and Jones, plaintiff exhibited the property to at least five different parties. In each instance the prospect complained about the wide variance between the amount of the loan and the asking price. Plaintiff conceived the idea of securing a larger loan on the property so that the capital investment of a purchaser would accordingly be reduced with the net result of enhancing the opportunity to sell the property. Following several conversations with Jones wherein the matter of a new loan was discussed, the latter told plaintiff to 'get as big a loan as you can'. Plaintiff then opened negotiations with one S. R. Kinsella, Vice-President of Giraldin Bros. Read Estate Company, described as mortgage bankers. This concern represented three insurance companies for the purpose of securing loans for them and of servicing the loans by collecting payments thereon. It appears that plaintiff first suggested to Mr. Kinsella that a loan be placed on the property for $620,000. Plaintiff was told that consideration would not even be given an application for such amount, and Kinsella suggested a figure of $550,000. It is clear from plaintiff's testimony that Jones, and not plaintiff, made all necessary contacts with the owner with respect to refinancing the property. A formal application for $550,000 was prepared by Kinsella or his firm, and was given by plaintiff to Jones, who had it executed by the owner. This application, filed on July 14, 1953, was rejected by the Great West Life Insurance Company of Canada for whom Giraldin Bros. Real Estate Company was acting. Later an application was prepared for a loan of $525,000. The pertinent portions thereof are:
'Application for Loan
'St. Louis, Mo., August 4, 1953.
'To Giraldin Bros. Real Estate Company.
'In consideration of your inspecting the property, situated in the City of St. Louis, Mo., Lot 155' 141' 11 1/4"', with the improvements described below, and known as house number Embassy Apartments, 530 N. Union Blvd. I hereby give you an irrevocable option for 30 days, to procure for me a loan of $525,000., to be secured by first deed of trust on said property, with perfect title; * * *'.
'I agree to pay you a commission of 1/2% for procuring this loan and also to pay or reimburse you for title examination, recording, releasing, and notary fees; all of which you may deduct from loan.
* * *
* * *
'The Embassy Investment Company
'By: Sam Koplar'
This application was accepted and approved by the insurance company, and loan papers, dated October 30, 1953, were prepared and executed by the necessary parties. Subsequent to the making of the loan, the date of which does not appear, the property was sold, but not through the efforts of Jones or plaintiff, and inasmuch as it developed that Jones did not have an exclusive listing contract at the time of the sale, neither he nor plaintiff received a fee or commission on the sale of the premises.
Additional facts pertinent to the points here presented will be considered and discussed in the course of the opinion.
Plaintiff contends that the court improperly excluded certain competent evidence. Since the court's action in this respect could materially affect the vital question of whether a jury case was made, we shall first examine and dispose of these points.
While plaintiff was being interrogated on direct examination he was requested to relate certain conversations with defendant Jones. When objections by counsel for defendants Embassy and Koplar were sustained on the ground that such conversations would not be binding upon said defendants, counsel for plaintiff pursued the matter no farther by making an offer of proof in either instance. In this situation we are unable to determine whether the testimony sought to be elicited was proper and germane to the litigated issue. It is a fundamental rule of procedure in this jurisdiction that when an objection to a proper question is sustained, and offer of proof must be made at the time showing what evidence will be given if the witness is permitted to answer, the purpose and object of the testimony, and all facts necessary to establish its admissibility. Unless this is done there is nothing to review on appeal. State ex inf. Mooney ex rel. Stewart v. Consolidated School Dist. No. 3, Mo.App., 281 S.W.2d 511, loc. cit. 515, and cases there cited; Pitha v. St. Louis Public Service Co., Mo.Sup., 273 S.W.2d 176. Since the record herein clearly demonstrates that plaintiff did not take the essential steps to preserve the matter for review, we must rule that the contention is without merit.
The next point deals with the exclusion of a letter written by plaintiff to defendant Jones. Plaintiff testified that a copy thereof was sent by him to defendant Koplar. The letter appears in the transcript and has received our careful consideration. We are of the opinion that it was properly excluded. It was written on December 28, 1953, more than two months subsequent to the time that the loan transaction was finally consummated, and long after the performance by plaintiff for which he seeks compensation. Fairly considered, the letter constituted nothing more than plaintiff's version of the controversy which had developed between the parties, and a demand for a 'financing fee' if the property was off the market because the owner did not want to sell, or 'a participation in the sales fee' if the property was off the market because it had been sold. The demand for payment of a fee could not under any theory have assisted plaintiff in constructing a submissible case. And the remainder of the letter constituted self-serving and voluntary declaration rendering it inadmissible. Hussey v. Robison, Mo.Sup., 285 S.W.2d 603, loc. cit. 608; E. C. Robinson Lumber Co. v. Cottonseed Delinting Corp., Mo.App., 207 S.W.2d 63, loc. cit. 67.
Finally the complaint is made concerning the court's action in sustaining an objection by counsel for defendants Embassy and Koplar to plaintiff's Exhibit A purporting to be a detailed statement showing income derived from the apartment building and expenses incident to owning and operating the same. The statement was ruled admissible as to defendant Jones. We have considered the circumstances as related by plaintiff under which the statement was furnished to him, as well as the statement itself, and have concluded that the trial court's action was correct. A sufficient reason for rejecting the statement as to Embassy and Koplar is the complete lack of proof that it was...
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