Kyle v. Kansas City Life Ins. Co.

• Citation: 201 S.W.2d 912,356 Mo. 331
• Decision Date: 12 April 1947
• Docket Number: 40034
• Parties: Hugh C. Kyle v. Kansas City Life Insurance Company, a Corporation, and Robert E. Lee Building Company, a Corporation, Appellants
• Court: Missouri Supreme Court

201 S.W.2d 912

356 Mo. 331

Hugh C. Kyle v. Kansas City Life Insurance Company, a Corporation, and Robert E. Lee Building Company, a Corporation, Appellants

No. 40034

Supreme Court of Missouri

April 12, 1947

Rehearing Denied May 12, 1947.

Appeal from Jackson Circuit Court; Hon. Brown Harris Judge.

Reversed.

Ray B. Lucas and Jos. R. Stewart for appellants.

(1) Respondent failed to produce a purchaser as required by his listing contract. Ensler v. Mo. Pac. R. Co., 324 Mo 530, 23 S.W.2d 1034; Clarkson v. Standard Brass Mfg. Co., 237 Mo.App. 1018, 170 S.W.2d 407; Webster's New International Dictionary, 1925, p. 1712; J. C. McCray & Son v. Pfost, 118 Mo.App. 672, 94 S.W. 998; Easton-Taylor Trust Co. v. Goodman, 43 S.W.2d 874. (2) Respondent was not the procuring cause of the sale of the property in question, and is not entitled to a commission thereon. Gamble v. Grether, 108 Mo.App. 340, 83 S.W. 306; Warren v. Fritsch, 14 S.W.2d 29; Reitz v. Oglebay, 213 Mo.App. 611, 251 S.W. 771; Tyler v. Parr, 52 Mo. 249; 34 Words & Phrases, p. 179; Crain v. Miles, 154 Mo.App. 338, 134 S.W. 52; A. J. Meyer & Co. v. Schulte, 189 S.W.2d 183. (3) The verdict of the jury is based upon speculation and conjecture, and it is not based upon any substantial evidence in the case. Pandjiris v. Oliver Cadillac Co., 339 Mo. 361, 98 S.W.2d 969; Watkins v. Bird-Sykes-Bunker Co., 322 Mo. 830, 16 S.W.2d 38; Bates v. Brown Shoe Co., 342 Mo. 411, 116 S.W.2d 31; Stofer v. Dunham, 208 S.W. 641; Griffith v. Continental Cas. Co., 299 Mo. 426, 253 S.W. 1043.

Harry L. Jacobs and Robert J. Coleman for respondent.

(1) Notice of prospect's identity unnecessary if broker was procuring cause of consummated sale. Lasoya Oil Co. v. Jarvis, 191 Okla. 213, 127 P.2d 142, 142 A.L.R. 270; 142 A.L.R. 275; Bryan v. Abert, 3 App. Cases (D.C.), 180; Stinde v. Blesch, 42 Mo.App. 578; Reynor v. Mackrill, 181 Iowa 210, 164 N.W. 335, 1 A.L.R. 523; 12 C.J.S. 212, sec. 91. (2) Missouri cases holding notice unnecessary. Tyler v. Parr, 52 Mo. 249; Goffe v. Gibson, 18 Mo.App. 1; Millan & Abbott v. Porter, 31 Mo.App. 563; McCormack v. Henderson, 100 Mo.App. 647, 75 S.W. 171; Glade v. Eastern Ill. Min. Co., 129 Mo.App. 443, 107 S.W. 1002; Bell v. Kaiser, 50 Mo. 150; Hovey v. Aaron, 133 Mo.App. 573, 113 S.W. 718; Lane v. Cunningham, 171 Mo.App. 17, 153 S.W. 525; Stinde v. Blesch, 42 Mo.App. 578. (3) See, also: 1 Restatement of Law of Agency, sec. 448, p. 1055; Mechem on Agency (2 Ed.), sec. 2436, p. 2018; 12 C.J.S. 217, sec. 93(b); 8 Am. Jur. 1101, sec. 189; Clifford v. Meyer, 33 N.E. 127; Clifford v. Meyer, 6 Ind.App. 633, 34 N.E. 23. (4) "Produce" in cases of consummated sales has same meaning as "procure" and does not require notice. The agreement should be construed in favor of the broker. Webster's New International Dictionary, 1926, p. 1712; Elmer v. Rubenstein, 24 S.W.2d 657; 12 C.J.S. 134, sec. 60; Duncan v. Borden, 13 Colo.App. 481, 59 P. 60; Sessions v. Pac. Improvement Co., 57 Cal.App. 1, 206 P. 613. (5) Parties themselves construed word "produce" as not requiring notice. Corder v. O'Neill, 176 Mo. 401, 75 S.W. 764. (6) "Produce" has several meanings. Jury's verdict settled its meaning here. Belt v. Good, 31 Mo. 128; Edwards v. Smith, 63 Mo. 119; Deutmann v. Kilpatrick, 46 Mo.App. 24. (7) Courts hold "produce" and similar words all have same meaning. 8 Am. Jur., pp. 1087, 1088, sec. 172; Wachtel v. Harkless, 112 Ind.App. 279, 44 N.E.2d 510; Vigeant v. Bank, 158 S.W.2d 184; Low v. Paddock, 220 S.W. 969; Reitz v. Oglebay, 251 S.W. 771, 213 Mo.App. 611; McCormack v. Henderson, 100 Mo.App. 647, 75 S.W. 171; Mechem on Agency, 2nd Ed. (1914), sec. 2431; Low Moor Iron Co. v. Jackson, 84 S.E. 100. (8) Appellants' cases discussed and distinguished. J. C. McCray & Son v. Pfost, 118 Mo.App. 672, 94 S.W. 998; Easton-Taylor Trust Co. v. Goodman, 43 S.W.2d 874; Sprague v. Feldman, 284 S.W. 155. (9) Respondent did not conceal his efforts. Appellants and purchaser got together and closed deal secretly. (10) Respondent was the procuring cause of the sale. There was substantial evidence to this effect. This made it a jury question. Buhrmester v. Ind. Plb. &. H. Supp. Co., 151 S.W.2d 509; Vining v. Mo.-La. Oil Co., 312 Mo. 30, 278 S.W. 747; Crain v. Miles, 134 S.W. 52. (11) Immaterial that respondent was not the first agent to mention the property to the purchaser. Gilchrist v. Stark, 41 S.W. 888; Goffe v. Gibson, 18 Mo.App. 1; Gamble v. Grether, 108 Mo.App. 340, 83 S.W. 306. (12) Immaterial that terms of sale were changed by the owner itself in consummating the deal. Stinde v. Blesch, 42 Mo.App. 578; Hovey v. Aaron, 133 Mo.App. 573, 113 S.W. 718; Glade v. Min. Co., 129 Mo.App. 443, 107 S.W. 1002; McCormack v. Henderson, 100 Mo.App. 647, 75 S.W. 171; Bailey v. Hercules, 22 S.W.2d 855; Rowland v. Progressive Inv. Co., 202 S.W. 257. (13) Real estate board rule immaterial. Volkmann v. Wortham, 189 S.W.2d 776. (14) Immaterial that respondent did not obtain the contract and that appellants themselves obtained the actual signature to the contract. Gilchrist v. Stark, 41 S.W.2d 888; Reitz v. O'Neil, 2 S.W.2d 178; Stinde v. Blesch, 42 Mo.App. 578; Crone v. Trust Co., 85 Mo.App. 601. (15) Testimony affirmatively proved respondent's efforts procured the sale. Brennan v. Roach, 47 Mo.App. 290; Gilchrist v. Stark, 41 S.W.2d 888; Gamble v. Grether, 108 Mo.App. 340, 83 S.W. 306; Glassman v. Fainberg, 35 S.W.2d 950.

OPINION

Clark, J.

In a suit for commission for selling real estate for defendants, plaintiff recovered a judgment for $ 12,500.00 with six per cent interest from date of suit. Defendants appeal.

Questions on appeal go to the sufficiency of the evidence and the correctness of plaintiff's instruction Number one.

Appellants owned the Robert E. Lee Hotel in Kansas City, Missouri. In 1939 they leased it for ten years to a corporation owned and controlled by Hutson and McCormick. The lease was negotiated by McConnell, a hotel broker. From some time in 1942 until in the autumn of 1944, McConnell, with the consent of appellants, talked with Hutson and McCormick at various times in an effort to sell them the hotel, offering it to them for $ 350,000.00 with a cash payment of $ 50,000.00, one time with a cash payment of $ 35,000.00, balance to be carried as a loan at four per cent interest. These efforts were unsuccessful.

On October 19, 1944, respondent, a hotel broker with a wide acquaintance among hotel operators, wrote appellants that he had some select listings on sales of hotels. J. B. Thompson, employed by appellants as manager of real estate sales, answered the letter on October 31, 1944, stating that they would discuss a listing of the Lee Hotel; that they would not give an exclusive listing, "but in case you produce a purchaser, we do pay the regular real estate commission." On November 2, 1944, respondent called on Thompson and procured the facts concerning the hotel: the terms of the existing lease, the amount of taxes which they had been paying, and the amount for which they would be willing to sell, to wit, $ 350,000.00, with $ 50,000.00 paid down and balance as a four per cent loan amortized over a period of twenty years. Respondent made notes of this information.

From here on the evidence is in sharp conflict. Respondent, who was the only witness on his behalf, testified: that shortly after he procured a listing of the hotel property he attempted to sell it to Hutson and McCormick; that he was a close friend of Hutson and had known him many years; that between November 2, 1944 and about March 1, 1945, he proposed a sale to Hutson twenty-five or thirty times and to McCormick a few times; that at first they were not interested; that later respondent told Hutson he was preparing some figures showing the advantage of ownership over renting; these were submitted to Hutson who said he was much interested in them; that Hutson requested all of respondent's papers, including the letter from Thompson referring to the listing, to send to McCormick who spent most of his time at Wichita, Kansas; that later Hutson told respondent that McCormick was also interested; that still later Hutson said he was trying to get his finances in shape so he could make a deal; that in January, 1945, respondent received an inquiry from a St. Louis company about the Lee Hotel; that he told Hutson about it and Hutson said tell them "you got a deal with me;" that Hutson did not return the papers which respondent had delivered to him until after this suit was begun. Respondent admitted that he never got an offer, a contract or down payment from Hutson or McCormick; that he did not complete the deal with them; that he never introduced them to appellants or told Thompson or any one connected with appellants' real estate department that he was negotiating with Hutson and McCormick; that he knew his listing was not exclusive and that others might be trying to sell the property at the same time he was.

Thompson Hutson, and McCormick, testifying for appellants, each contradicted respondent in many important particulars and we find nothing in their testimony which aids respondent's case. Thompson had been trying to sell the hotel to Hutson and McCormick before it was listed with respondent and continued his efforts thereafter, seeing one or both of them every month or two. In February, 1945, Thompson again submitted a proposal, in writing, which resulted in an interview between Thompson, Hutson and McCormick. Hutson and McCormick rejected Thompson's proposal and made a counter offer to buy the property for $ 350,000.00, cash payment of $ 25,000.00 and balance to be carried on a four per cent loan amortized over a period of twenty years. Thompson submitted this offer to appellants; it was accepted, a contract was entered into on...