Lee-Schermen Realty Co. v. Rueffel

• Citation: 176 S.W.2d 655
• Decision Date: 04 January 1944
• Docket Number: No. 26537.,26537.
• Parties: LEE-SCHERMEN REALTY CO. v. RUEFFEL et ux.
• Court: Court of Appeal of Missouri (US)

176 S.W.2d 655

LEE-SCHERMEN REALTY CO. v. RUEFFEL et ux.

No. 26537.

St. Louis Court of Appeals. Missouri.

January 4, 1944.

Appeal from St. Louis Circuit Court; Eugene J. Sartorius, Judge.

"Not to be reported in State Reports."

Action by Lee-Schermen Realty Company against Theodore W. Rueffel and wife to recover a commission as agent in sale of real estate. From a judgment dismissing the action, plaintiff appeals.

Reversed and remanded, with directions.

Henry Elias Haas, of St. Louis, for appellant.

John Grossman, of St. Louis, for respondent.

HUGHES, Presiding Judge.

Appellant seeks to recover a commission as agent for respondent in the sale of real estate. The action was commenced in the justice of the peace court by plaintiff filing a petition alleging that on or about the 21st day of September, 1942, defendants authorized the plaintiff to sell the property and agreed to pay the plaintiff in case of a sale, the usual and customary commission of 5% on the sale price; that thereafter it found, procured and produced a purchaser and a sale was consummated for $2,300 and by reason thereof plaintiff was entitled to a commission of $115, for which it prayed judgment, together with interest from October 12, 1942, the time the sale was made. On trial in the justice court plaintiff had judgment for $115 against both defendants. Thereafter defendant Theodore W. Rueffel alone appealed to the circuit court.

After the case reached the circuit court plaintiff filed an amended petition in two counts; the first count was substantially the same as the original petition; the second count was based on the same transaction but stated a cause of action on quantum meruit, alleging that it was not expressly agreed that plaintiff's services were to be performed gratuitously and that plaintiff expected to be paid the reasonable value of its services, which it alleged to be 5% of the sale price, and for which it prayed judgment.

Thereupon defendant Theodore W. Rueffel filed a motion as follows: "Comes now the defendant and moves the Court to strike plaintiff's amended petition from the files, and for grounds for said motion defendant states that said amended petition constitutes a departure from the cause of action originally stated."

This motion was later sustained, and plaintiff declining to plead further, the court ordered that plaintiff's cause of action be dismissed without prejudice and that the defendant have judgment for his costs. Plaintiff appeals to this court.

It will be seen that the original petition stated a cause of action on an express contract, whereas the amended petition stated a cause of action in the first count on an express contract, and stated a cause of action in the second count on an implied contract, both counts being based on the same transaction.

There was no motion by plaintiff for a new trial, hence respondent claims that there is nothing before this court for review. That an appeal is properly taken, without having first presented a motion for a new trial, from a final judgment entered upon a motion which takes the place or fills the office of a demurrer, or of what would be a speaking demurrer, if such were permissible, is so well settled by recent decisions of the Supreme Court that anything we might add would be in the nature of supererogation. The appeal is properly before us although there was no motion for a new trial or in arrest of judgment. City of St. Louis v. Senter Commission Co., 340 Mo. 633, 102 S.W.2d 103; Melenson v. Howell, 344 Mo. 1137, 130 S.W.2d 555; Halloran v. Hackmann, Mo.Sup., 160 S.W.2d 769.

The motion to strike out the amended petition, which the court sustained, was leveled at the entire petition. It is not contended and could not be contended with reason that the first count of the amended petition was not the same in substance and stated the same cause of action as did the original petition. Therefore, inasmuch as the amended petition retained the same cause of action as in the original petition, even if the second count could be said to be a departure, the entire amended petition could not be stricken out, but, if vulnerable to a motion to strike at all, only the objectionable count could be stricken. Schroll v. Noe, Mo.App., 297 S.W. 999.

However, there was no departure. The cause of action began and ended as a suit by a real estate agent for a commission for finding, procuring and producing a purchaser of defendant's property. The original petition was based upon an express contract of the employment of the agent, and the only effect of the amended petition was that plaintiff, evidently in order to meet the proof in either event, plead the same cause of action on an express contract in the first count, and plead the same cause of action on an implied contract of employment in the second count. Both counts of the amended petition had reference to the same transaction; both counts are in contract and both relate to the same subject matter; both are for the same services, for the sale of the same property for the same owners, to the same purchaser, for the same price, at the same time.

If the amended petition had not contained the first count, which was on an express contract, and had consisted only of the second count, which was on quantum meruit, still it would not have been such a departure as the law prohibits. It is the law that when an express contract is open and unexecuted, and plaintiff sues for a...