Krieger v. Rozier Inv. Co.

• Decision Date: 22 June 1923
• Docket Number: No. 17884.,17884.
• Citation: 253 S.W. 481
• Parties: KRIEGER v. ROZIER INV. CO.
• Court: Missouri Court of Appeals

253 S.W. 481

KRIEGER v. ROZIER INV. CO.

No. 17884.

St. Louis Court of Appeals. Missouri.

June 22, 1923.

Appeal from St. Louis Circuit Court, Franklin Ferriss, Judge.

"Not to be officially published."

Action by John B. Krieger, doing business as the John B. Krieger Real Estate Company, against the Rozier Investment Company, a corporation. Judgment for plaintiff, and defendant appeals. Affirmed.

Welton H. Rozier, of St. Louis, for appellant.

Leahy, Saunders & Walther, of St. Louis, for respondent.

DAVIS, C.

This case originated in the justice court-of the city of St. Louis; plaintiff demanding a balance of $60 for commission for negotiating a lease for a certain building for a term of ten years. On appeal to the circuit court, a jury being waived, a trial de novo was had before the court, resulting in a judgment in favor of plaintiff for $63.96, including interest. Prom the judgment, defendant appeals.

Plaintiff's evidence shows that in 1917 or thereabouts, Edgar Rozier, representing defendant, called on plaintiff, at his office, requesting him to find a tenant for a certain building, saying: "You have specialized in it, and I wish you would get busy." Plaintiff gave his best efforts, and, in November, 1919, a lease was negotiated by plaintiff for defendant, the transaction closed, and the building leased to the Superior Supply Company for ten years at an annual, rental of $2,400. At the time of the execution of the lease, plaintiff presented a statement, claiming 1½ per cent, of the gross rental, or $360, as and for his commission. Edgar Rozier signed and delivered the lease, and said to plaintiff, "I will give you a check in a few days." After 30 days, Mr. Rozier called at plaintiff's office, handed him an envelope and said, "Don't open that until I get out of the door." Plaintiff asked, "Why, isn't it all there?' Rozier said, "No; It will send you the balance in a few days." Plaintiff opened the envelope, found therein a check for $300, later calling up Rozier and asking, "How about the balance of $60?" Rozier replied, "Oh, I will send you that later." To that time no question was raised to the presented statement, charging, as the commission, 1½ per cent. of the gross rental. There had not been any agreement as to any rate prior to that, verbal or written. There was no agreement as to the rate to be charged at any time. Effective February 7, 1917, the Real Estate Exchange rate for negotiating leases for property from one to ten years was 1½ per cent. on the gross rental. This was the rate in effect at the time of the negotiation and delivery of the lease, but prior to February 7, 1917, the rate had been 1¼ per cent. on the gross rental.

The following questions were court and answers given:

"The Court (Q.): Well, there was no agreement about a compensation? A. There was absolutely no agreement.

"The Court (Q.): Nothing said about it? A. Absolutely no agreement."

Barngrove, a witness for plaintiff, who duly qualified as an expert, testified that the fair and reasonable rate of compensation during the month of November; 1919, for negotiating leases of the character in evidence was 1½ per cent. on the gross rental for ten years.

For defendant, Mr. Rozier's testimony shows on direct examination, that, in the spring of 1916, plaintiff agreed to find a tenant for and to lease the building at 211-219 Pine street, charging the rate of the Real Estate Exchange in effect at that time. On cross-examination he testified that he asked plaintiff to lease the building, inquiring as to the rate, and plaintiff replied that it would be the Real Estate Exchange rate.

Questions by the Court: "Was that all he said, that it would be the Real Estate Exchange rate?" A. "Yes, sir; as I remember it."

The Court: "He didn't specify as to the rate at any particular time?" A. "No, no; your Honor."

The change of the rate from 1¼ per cent. to 1½ per cent., or that a change in rate had taken place at all, was not brought to defendant's notice until after the payment of $300 to plaintiff.

The court, without request from either party, verbally made a purported or so-called finding of fact as follows:

"The court finds as a fact that the property was placed by the defendant in the hands of the plaintiff for the purpose of obtaining a tenant in 1916, under an agreement that the agent was to be paid for his services according to the rate established by the Real Estate Exchange; that there was no change or modification of that arrangement; that in point of fact the services for which the plaintiff claims were not rendered until November, 1919; that the then prevailing rate was 1½ per cent., while the rate that prevailed in 1916 was 1¼ per cent. Under these facts the court finds that as a matter of law the plaintiff is entitled to recover according to the rate in effect at the time the service was rendered, namely, in November, 1919."

The record fails to show the request for a finding of facts by either party. The decisions construing section 1402, R. S. of Mo. 1919, hold that a so-called finding, without request of either party, may not be considered. As was said in Advertising Co. v. Castleman, 265 Mo. 345, loc. cit. 352, 177 S. W. 597, loc. cit. 600:

"A finding of facts by the court, so far as it serves any purpose in our procedure, is a creature of the statute, to be employed only upon request of one of the parties to the suit, and for the statutory purpose of enabling the parties to except to the decisions of the court upon the questions of law and equity arising in the case; and that a voluntary statement of the judge, uncalled for by either party, of the considerations of fact which led him to his decision, whether embodied in the text of the judgment, or in a separate writing, cannot be substituted by either party."

II. It becomes important to consider the relationship of the parties relative to the contract entered into by them. Considering the facts: When defendant requested plaintiff to find a lessee for its building, the request was a mere offer and the contract was unilateral, becoming bilateral when plaintiff found a lessee ready, able, and willing to carry out the terms of defendant's offer. When such tenant was found, plaintiff became entitled to compensation. If nothing was said regarding compensation as plaintiff testified, it was implied, and plaintiff, upon acceptance, became entitled to a reasonable compensation. If, however, as defendant testified, plaintiff agreed to charge the rate of the Real Estate Exchange, that rate was binding. But, as we later show, the judgment was a general finding on controverted facts, and we may not disturb it, even if we so desired.

It is said in Mechem on Agency, vol. 2, § 2429:

"A real estate broker has usually very few of the characteristics of an ordinary agent, but stands rather in the attitude of one to whom the offer of a unilateral contract has been made. That is to say, the owner offers to pay a commission if the broker will perform a certain act, namely, find a purchaser for the property on certain terms. The broker on the other hand, ordinarily makes no present promise. He does not agree that he will find a purchaser."

We think the above statement applicable to the facts here.

Defendant says that the trial court erred in refusing to give its declarations of law No. 1 and No. 2 as follows:

"No. 1. If the court, sitting as a jury, finds and believes from the evidence that in the month of March, 1916, or on or about that time, plaintiff and defendant entered into a contract whereby plaintiff undertook to find a suitable tenant ready and willing to take a lease on defendant's commercial building, 217-219 Pine street, St. Louis, Mo., and at the time of entering into said contract it was understood the compensation for such services was to be governed by the prevailing rate...