Lane v. Cunningham

• Decision Date: 04 February 1913
• Citation: 153 S.W. 525
• Parties: LANE v. CUNNINGHAM.
• Court: Missouri Court of Appeals

153 S.W. 525

LANE v. CUNNINGHAM.

St. Louis Court of Appeals. Missouri.

February 4, 1913.

1. BROKERS (§ 53*) — COMMISSIONS — INTERESTING PURCHASERS.

That a real estate broker had not communicated to his principal the name of a party he had interested in purchasing the principal's building, nor the fact that it was sold for less than the broker was authorized to sell it for, is no reason why the broker should not recover his commissions, though the sale was finally consummated by the principal directly with such interested party, if the broker was the procuring cause.

2. BROKERS (§ 88) — TRIAL — COMMISSIONS — PROCURING CAUSE — EVIDENCE.

In an action by a broker for commissions in connection with the sale of a building, whether the broker was the procuring cause held, under the evidence, for the jury.

Appeal from St. Louis Circuit Court; C. C. Allen, Judge.

Action by John J. Lane against P. J. Cunningham. Judgment for defendant, and plaintiff appeals. Reversed.

Leahy, Saunders & Barth, of St. Louis, for appellant. James P. Maginn and Schnurmacher & Rassieur, all of St. Louis, for respondent.

NORTONI, J.

This is a suit by a real estate broker for his commissions. At the conclusion of the evidence on behalf of plaintiff, the court peremptorily directed a verdict for defendant, which was given and judgment entered thereon. From this judgment plaintiff prosecutes the appeal.

It appears plaintiff is a real estate broker and maintains an office as such in the city of St. Louis. Defendant owned a six-story building situated at Eighth and Lucas streets in the same city which he desired to sell Plaintiff had negotiated a sale of other property for defendant several years before and had received his commission therefor. The evidence tends to prove that in September, 1903, defendant authorized plaintiff to sell his building at Eighth and Lucas and agreed to pay him the usual commission for his services. The price fixed on the property at that time was $125,000, but this was afterwards modified. Nearly two years afterwards plaintiff learned that the firm of Meyer-Bannerman & Co. was in the market for a building of the character of that owned by defendant and called upon defendant in June, 1905, touching the matter. He did not inform defendant to whom he sought to sell the property, but did inform him at that time that he had a prospective purchaser for the property. Defendant said: "Well I am anxious to sell the property. I am asking $125,000 for it but I will take less. What you want to do is to get me a proposition on the property." Defendant instructed plaintiff to go ahead and get him a proposition on the property, and said: "I would just as leave pay you the commission as any one. If you will sell it, you can get your commission and I will pay it to you." The following morning plaintiff called upon Mr. Isaac Meyer, of the firm of Meyer-Bannerman & Co., and took up the matter of the sale of defendant's property to him or his company. Mr. Meyer accompanied plaintiff to the property and through it. It appears that plaintiff and Mr. Isaac Meyer went to the topmost floor of defendant's building in the elevator and passed down through the building from floor to floor while Mr. Meyer made such an examination as he desired with respect to the same. Mr. Meyer became interested in the property immediately, and while yet within the building said to plaintiff, "I am going to buy this property." This occurred on Thursday. Mr. Meyer inquired of plaintiff as to whether or not defendant would accept some other property in exchange, and plaintiff told him that he thought defendant wanted cash. Mr. Meyer did not submit a proposition to plaintiff, but said only, "I am going to buy this property." After some discussion, plaintiff took his leave of Mr. Meyer, but did not call upon defendant nor inform him of the prospective purchaser nor of the likelihood of a sale for the reason, as he says, that he had no definite proposition from Mr. Meyer to submit. A day or two later plaintiff learned that an architect had been through defendant's building and examined it on Friday, or the day following that which the interested Mr. Meyer therein. On the following Monday, plaintiff called upon Mr. Meyer to further press the sale of the property, when Mr. Meyer said to him, "John, where have you been the last couple of days?" Plaintiff replied, "Well, Ike, I have been quite a busy man in selling real estate, and I thought it will take some time to digest the proposition at the beginning." To this Mr. Meyer replied, "John, Cunningham (defendant) has been here." Plaintiff asked Mr. Meyer, "Ike, did you tell him we were through the building?" and Mr. Meyer replied; "Well, no; Mr. Maginn, his lawyer, came here, and him and Jake (Mr. Meyer's brother, and a member of the same firm) took it up, and he said he wouldn't pay a cent for a commission." It was further shown that defendant sold the property to plaintiff's customer, Meyer-Bannerman & Co., on Monday, the 1st day of July, or within four days after plaintiff first interested Mr. Isaac Meyer in the building, and on which date Mr. Meyer said to plaintiff that he was going to buy the property.

The purchase price paid by Meyer-Bannerman & Co. was $101,500, and the evidence reveals that 2½ per cent. is the usual and reasonable commission for a real estate agent for such sales in and about St. Louis. Plaintiff at no time disclosed to defendant that Meyer-Bannerman & Co., the purchaser, or Mr. Meyer, with whom the negotiations were had, was considering the purchase of...