Lane v. Cunningham

• Decision Date: 04 February 1913
• Parties: JOHN J. LANE, Appellant, v. P. J. CUNNINGHAM, Respondent
• Court: Missouri Court of Appeals

153 S.W. 525

171 Mo.App. 17

JOHN J. LANE, Appellant, v. P. J. CUNNINGHAM, Respondent

Court of Appeals of Missouri, St. Louis

February 4, 1913

Appeal from St. Louis City Circuit Court.--Hon. Charles Claflin Allen, Judge.

REVERSED AND REMANDED.

Leahy Saunders & Barth for appellant.

(1) On a demurrer to plaintiff's evidence, every reasonable intendment in favor of plaintiff, to be drawn from the evidence adduced, must be indulged in his favor. Hamman v. Coal & Coke Co., 156 Mo. 232; Fassbinder v Railroad, 126 Mo.App. 563; Meily v. Railroad, 215 Mo. 567; Frick v. St. Louis, Kansas City & Northern Railway Co., 75 Mo. 595; Pauck v. Beef & Provision Co., 159 Mo. 467; Bensiek v. Transit Co., 125 Mo.App. 121. (2) If a real estate broker, through his exertions in introducing the purchasers to the owners procured a sale of land, he is entitled to his commission though the final negotiations are conducted without his knowledge by the principal directly with the purchaser. Sidebotham v. Spengler, 154 Mo.App. 11; Corum v. Arnold, 156 Mo.App. 547; Real Estate Co. v. Epstein, 157 Mo.App. 101; Simmons v. Oreth, 140 Mo.App. 269; Morgan v. Keller, 194 Mo. 663; Lipscomb v. Mastin, 142 Mo.App. 228; Goldsberry v. Eads, 161 Mo.App. 8; Stevens v. Bacher, 162 Mo.App. 284; Cotton v. Meadows, 163 Mo.App. 723.

James P. Maginn and Schnurmacher & Rassieur for respondent.

Plaintiff was properly nonsuited. While it is true a real estate broker has earned his commission if he is the procuring cause of the sale, though the transaction be concluded directly between the owner and the purchaser, and even though it be concluded on altered terms, yet, to entitle the broker to recover, he must show it was he who brought the parties together. Tyler v. Parr, 52 Mo. 249; Stevens v. Bacher, 162 Mo.App. 284; Real Estate Co. v. Epstein, 157 Mo.App. 106; Sidebotham v. Spengler, 154 Mo.App. 15.

NORTONI, J. Reynolds, P. J., and Allen, J., concur.

OPINION

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 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 and Company 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 as 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 and Company, 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 on which he 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 and Company, on Monday, the first 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 and Company was $ 101,500 and the evidence reveals that two and one-half 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 and Company, the purchaser, or Mr. Meyer, with whom the negotiations were had, was considering the purchase of the property; nor did he introduce or produce to defendant in person a purchaser for the property, in the literal sense of those terms.

It is to be gleaned from the record that the court directed a verdict for defendant on the theory that plaintiff was not entitled to recover unless he had disclosed to defendant the name of the purchaser and that defendant, notwithstanding intermeddled and consummated the sale with full knowledge of the fact that plaintiff had interested the purchaser in the property. We do not accede to this view of the law, for, obviously, a real estate broker may be the procuring cause of the sale even though he has not communicated the name of the purchaser to his principal. In a suit at law, it is not necessary to prove every fact by direct evidence, and the jury may infer substantive facts in the case from other facts and circumstances in evidence. The law is well...