Knisely v. Leathe
| Decision Date | 02 April 1914 |
| Citation | 166 S.W. 257,256 Mo. 341 |
| Parties | ELIZABETH C. KNISELY, Administratrix, Appellant, v. GRACE A. LEATHE, Executrix |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. C. Claflin Allen Judge.
Reversed and remanded.
E. P Johnson, Edward C. Crow and Morton Jourdan for appellant.
(1) This is an action on a plain and simple contract in writing. Bailey v. Chapman, 41 Mo. 538; Carpenter v Rynders, 52 Mo. 281; Finch v. Trust Co., 92 Mo.App. 265; Concanon v. Mines & Mill Co., 156 Mo.App. 90; Kilpatrick v. Wiley, 197 Mo. 123; Rice v. Mayo, 107 Mass. 550; Stewart v. Fowler, 53 Kan. 537; Hodgkins v. Mead, 29 N.Y. 671; Willes v. Smith, 77 Wis. 81; Ward v. Cobb, 148 Mass. 518; Flynn v. Jordal, 124 Iowa 457; Merriman v. Wickersham, 141 Cal. 570; Flower v. Davidson, 44 Minn. 47. There was a sale, notwithstanding there was a clause of forfeiture in the contract; the latter provision being for the benefit of the vendor. Stewart v. Fowler, 53 Kan. 537; Willes v. Smith, 77 Wis. 81; Veazie v. Parker, 72 Me. 443. (2) The contract between Leathe and Knisely shows that the debt acknowledged in it was due from the former to the latter before the contract was entered into between them. Fitch v. Cunningham, 10 N.Y. 17; McComb v. Von Ellert, 7 Misc. (N.Y.) 59; Little v. Rees, 34 Minn. 277; Hough v. Baldwin, 50 Misc. (N.Y.) 546. (3) The nature of the services rendered by Knisely to Leathe that were the consideration for their contract, does not appear, but if they did appear and were for selling the property for Leathe, as his agent, it is not the duty of a real estate agent to see that a binding contract is entered into between his principal and the purchaser, nor that the terms of the sale are complied with by the purchaser, to enable him to recover his commissions. Morgan v. Keller, 194 Mo. 663; Gelatt v. Ridge, 117 Mo. 560; Finch v. Trust Co., 92 Mo.App. 263, 271; Hayden v. Grillo, 42 Mo.App. 1; Brown v. Smith, 113 Mo.App. 68. Knisely had done all that was required of him to be done by his contract. Love v. Owens, 31 Mo.App. 501; Carpenter v. Rynders, 52 Mo. 278; Bailey v. Chapman, 41 Mo. 536; Harwood v. Diemer, 41 Mo.App. 48; Goodson v. Embleton, 106 Mo.App. 77; Real Estate Co. v. Ruhlman, 68 Mo.App. 503; Finch v. Trust Co., 92 Mo.App. 270; Brown v. Smith, 113 Mo.App. 68; Nesbit v. Helser, 49 Mo. 383. (4) If Knisely had been simply an agent of Leathe, to make a sale of the property, and had concluded the terms of a sale of it with Wolcott, and Leathe had entered into a contract of sale of the property with Wolcott as he did, Knisely would have been entitled to recover his commissions of Leathe, not only irrespective of whether Wolcott paid the purchase price to Leathe, but also irrespective of the question of the ability of Wolcott to pay it. A distinction that is generally recognized in the cases is, that if the broker signs the name of his principal to the written contract, the above rule does not apply unless his principal approves or accepts the written contract. Moore v. Irwin, 89 Ark. 289; Alt v. Doscher, 102 App.Div. (N.Y.) 344, 186 N.Y. 566; Fleet v. Barker, 120 App.Div. (N.Y.) 455; Van Varick v. Investment Co., 76 Misc. (N.Y.) 593; Gilder v. Davis, 137 N.Y. 504; Kalley v. Barker, 132 N.Y. 1; Brink v. Goodelle, 138 N.Y.S. 1035; Lombard v. Sills, 170 Mo.App. 555; Glade v. Mining Co., 129 Mo.App. 443, 455; Wright v. Brown, 68 Mo.App. 577; Robinson v. Lowe, 169 Mo.App. 443; Francis v. Baker, 45 Minn. 83; Fox v. Ryan, 240 Ill. 396; Wilson v. Mason, 158 Ill. 311; Friestedt v. Dietrich, 84 Ill.App. 604; Scully v. Williamson, 26 Okla. 19; Hugill v. Weekly, 64 W.Va. 210; Flynn v. Jordal, 124 Iowa 457, 459; Wenks v. Howard, 149 Iowa 16, 21; Johnson v. Holland, 211 Mass. 363; Roche v. Smith, 176 Mass. 595; Ward v. Cobb, 148 Mass. 518; Rice v. Mayo, 107 Mass. 550; Cook v. Fiske, 12 Gray, 491; Seabury v. Ins. Co., 205 Pa. St. 234; Hipple v. Laird, 189 Pa. St. 472; Keys v. Johnson, 68 Pa. St. 42; Coleman v. Meade, 13 Bush (Ky.), 358, 360; Veazie v. Parker, 72 Me. 443; Odell v. Dozier, 104 Ga. 203; Wray v. Carpenter, 16 Colo. 271; Parker v. Estebrook, 68 N.H. 349; Conkling v. Krakauer, 70 Tex. 735; Mortgage Co. v. Thetford, 43 Tex. Civ. App. 536; Levistone v. Landreaux, 6 La. Ann. 26; Love v. Miller, 53 Ind. 294, 300; Middleton v. Findla, 25 Cal. 81; Coward v. Clanton, 122 Cal. 451; Lockwood v. Halsel, 41 Kan. 166; Stewart v. Fowler, 53 Kan. 537; Willes v. Smith, 77 Wis. 86; Parker v. Walker, 86 Tenn. 566; Mattes v. Engle, 15 S.D. 330; Loan & Inv-Co. v. Spindle, 108 Va. 431; Land & Loan Co. v. Thompson, 86 Ala. 146, 149-150; Pfanz v. Humberg, 30 Ohio Cir. Ct. 711. Under the foregoing, the contract between Leathe and Wolcott for the sale of the property is ample proof in favor of appellant, that Wolcott was ready, able and willing to comply with his contract, and testimony in regard to the financial ability of Wolcott would not be admissible on a trial of this cause. Francis v. Baker, 45 Minn. 83; Fleet v. Barker, 120 App.Div. (N.Y.) 455. The foregoing is the settled doctrine of the courts of the United States on this question, except in the State of Maryland. Riggs v. Turnbull, 105 Md. 135. The case at bar is much stronger than the foregoing, as Leathe provided in his contract with Knisely, that the sale must be made to or through Wolcott. The principle on which said rule is based is, that where property is purchased and unqualifiedly accepted on delivery, or work done and so accepted, the contract is fully executed and payment therefor is due in the absence of a special contract otherwise. Waterworks Co. v. Joplin, 177 Mo. 527; Bishop on Contracts, secs. 795, 805. (5) The original petition herein was filed March 10, 1909, and a summons was issued thereon the next day. The latter was nine days prior to the expiration of two years after the first grant of letters testamentary on the estate. This summons was returned non est on its return day and an alias summons was issued on the latter day, which was returned duly executed April 27, 1909. If this case had been dismissed or a nonsuit taken in it the latter would have been the date of the exhibition of the claim in the case, under the literal terms of section 193. But there is no requirement of a previous exhibition of it when a regular presentation is made within the statutory period and prosecuted in court for allowance; a technical exhibition of a claim not being required for and having nothing to do with its allowance, but with its classification in certain cases. McKee v. Allen, 204 Mo. 674; Waltemar v. Schnick's Estate, 102 Mo.App. 133, 139; Spalding v. Suss, 4 Mo.App. 549. The claim having been previously exhibited, filing the petition herein and the issue of the summons thereon was the beginning of this suit and arrested the running of any statute of limitation against the claim. McCormick v. Clopton, 150 Mo.App. 135; McGrath v. Railroad, 128 Mo. 1; State v. Wilson, 216 Mo. 215, 292. The issue of the alias summons on the return day of the original kept the process continuously alive, and its service completed the bar to the running of any statute of limitation. The service related back to the filing of the petition and the appearance of respondent did the same, even if the claim was not exhibited previously. Especially is this true in the latter case under section 197, providing that claims may be established against estates in courts of record "in the ordinary course of proceeding." Waltemar v. Schnick's Estate, 102 Mo.App. 133. (6) Sections 193 and 197 have been construed very liberally. Tevis v. Tevis, 23 Mo. 256; Milan v. Pemberton, 12 Mo. 598; Farrar v. Comfort, 33 Mo. 44; Williams v. Anthony, 47 Mo. 299; Gewe v. Hanszen, 85 Mo.App. 136; Robinson v. Levy, 217 Mo. 510; Sec. 1844, R. S. 1909; Kelly v. Thuey, 143 Mo. 429; Withers v. Railroad, 122 Mo.App. 288. (7) This suit is on a written contract for the payment of money by Leathe to Knisely, and comes directly under the ten-year limitation prescribed in the first clause of Sec. 1888, R. S. 1909, and it was begun more than a year and a half before the ten years expired. Respondent claims that this is a suit for damages, which is not true, but if it were, it is on the written contract and the ten-year statute applies to it. Howe v. Mittelberg, 96 Mo.App. 490; State v. Brown, 208 Mo. 613. (8) The plea of the legal exhibition of this claim to respondent, by the former suit, also anticipated and avoided the defense of the special statute of limitation, if it had been running. Bliss on Code Pleading, sec. 205; Monmouth College v. Dockery, 241 Mo. 555; Transportation Co. v. Sims, 36 Mo.App. 233; Smith v. Richmond, 19 Cal. 481; Kenedy v. Williams, 11 Minn. 320; Knox v. Gerhauser, 3 Mont. 271. And where the petition shows a bar by the statute, as it did in this case, it must also avoid it. State v. Yates, 231 Mo. 292; Burrus v. Cook, 215 Mo. 503; Zoll v. Carnahan, 83 Mo. 42; Bass v. Berry, 51 Cal. 264.
A. & J. F. Lee, Charles M. Polk, Luther Ely Smith, George W. Lubke and George W. Lubke, Jr., for respondent.
(1) The ruling of the circuit court on respondent's motion to strike out part of appellant's third amended petition must be taken to have in part been the foundation of its later final judgment in the case. Hence to be reviewable on appeal a motion to set aside that judgment and thereafter the filing of a final bill of exceptions was necessary. Opportunity must first be given a lower court to correct errors by a motion to set aside its judgment or for a new trial or in arrest of judgment before they can be considered by the appellate court. Banks v. Landis, 39 Mo. 406; Bishop v. Ransom, 39 Mo. 416; Collins v Saunders, 46 Mo. 389; Harris v. Harris, 145 Mo. 622; Williams v. Railroad, 112 Mo. 485; R. S. 1909, secs....
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