Laughlin v. Terry
| Decision Date | 07 December 1937 |
| Docket Number | No. 24157.,24157. |
| Citation | 110 S.W.2d 838 |
| Parties | LAUGHLIN v. TERRY. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Granville Hogan, Judge.
"Not to be published in State Reports."
Action by Marie H. Laughlin against Albert T. Terry. Judgment for plaintiff, and defendant appeals.
Affirmed.
Charles Claflin Allen, Jr., of St. Louis, for appellant.
Jones, Hocker, Gladney & Grand and Lon Hocker, Jr., all of St. Louis, for respondent.
SUTTON, Commissioner.
This is an action to recover of the defendant $150 retained by him as commission for making a lease on plaintiff's residence property, in Fair Oaks, in St. Louis county.
The action was commenced before a justice of the peace in the city of St. Louis, whence it went on appeal to the circuit court. Upon a trial anew in the circuit court, without a jury, judgment was given in favor of plaintiff for $169.15, including interest, from which judgment defendant has appealed to this court.
The contract under which defendant claims the right to retain the commission sued for, is as follows: "I hereby agree to pay Albert T. Terry, Son & Company a commission of five per cent of the gross amount of rentals of any lease accepted by me on #5 Fair Oaks, St. Louis County, said commission to be paid to Albert T. Terry, Son & Company upon consummation of any lease by said Albert T. Terry, Son & Company."
Defendant found a party to whom the Fair Oaks residence was leased "for the term of two years commencing October 21, 1933, and ending October 20, 1935," the lessee agreeing to pay "for the use of said premises during the continuance of this lease equal monthly installments of $250 in advance on the 21st day of each calendar month," with the following reservations:
At the time the lease was executed, defendant received from the lessee $1,500 in payment of rentals for six months, and rendered to plaintiff a statement charging himself with the rentals received and taking credit as follows: Plaintiff accepted and cashed the check inclosed with the statement.
The lessee went into possession of the premises and occupied the same for one year under the lease. On July 17, 1934, he gave plaintiff written notice that he would terminate the lease on October 20, 1934, on which date he vacated the premises. Thereupon, plaintiff demanded of defendant $150 claimed by her as unearned commission retained by defendant out of the rentals received by him from the lessee. Upon the refusal of defendant to pay plaintiff said amount this suit was brought.
Defendant assigns error here upon the refusal of the court to give at his request a declaration of law in the nature of a demurrer to the evidence. Defendant contends that under the contract of employment he is entitled to a commission of 5 per cent. on the amount of rentals payable under the lease in the event of occupancy by the lessee for the full optional term of two years provided for in the lease. He contends that the clause, "a commission of five per cent on the gross amount of rentals," means a commission on the maximum amount of rentals. Of course, the clause has no such meaning. It obviously means the gross amount of rentals the lessee is bound to pay, or becomes bound to pay through the lapse of options, under the provisions of the lease.
Defendant further contends that the provision which makes the commission payable "upon the consummation of any lease" shows that the...
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