Long v. Lincoln

Decision Date26 September 1975
Docket NumberNo. 9846,9846
PartiesWilliam H. LONG and Bessie Long, Plaintiffs-Appellants, v. Kenneth LINCOLN, Defendant-Respondent.
CourtMissouri Court of Appeals

James A. Dunn, Carthage, for plaintiffs-appellants.

Edison Kaderly, Lamar, for defendant-respondent.

Before STONE, P.J., and HOGAN and TITUS, JJ.

TITUS, Judge.

Plaintiffs orally listed their farm for sale with defendant, a real estate agent. Defendant obtained buyers therefor and the land was sold for $90,000. A dispute arose as to the amount of the sales commission due defendant. Plaintiffs instituted this declaratory judgment action (Rule 87) contending the listing was conditioned upon their receiving not less than $88,800, which would give defendant a commission of $1,200 for his services, but that defendant was claiming a 5% commission or $4,500. Defendant agreed with plaintiffs' explanation of the dispute and counterclaimed for a $4,500 commission. The trial judge to whom the cause was tried entered judgment declaring defendant was entitled to a commission of $4,500. Plaintiffs appealed.

The lone point relied on by plaintiffs in their appeal is: 'When a special contract exists and a realtor agrees to sell real estate for a net price to his principal, the realtor is bound by his contract and cannot in the absence of bad faith on the part of the seller or a waiver of the right to insist upon the strict terms of the agreement receive any commission based upon the total sales price.' Defendant says this point violates Rule 84.04(d) and saves nothing for appellate review. We agree.

Requirements of Rule 84.04(d) must be strictly applied (Associates Discount Corp. of Iowa v. Fitzwater, 518 S.W.2d 474, 477(2) (Mo.App.1974)), are mandatory (M & A Electric Power Cooperative v. Nesselrodt, 509 S.W.2d 468, 470(1) (Mo.App.1974)), and applicable to appellate review of court-tried cases. Freshour v. Schuerenberg, 495 S.W.2d 116, 118(8) (Mo.App.1973). A point, such as that penned in plaintiffs, brief, which is nothing more than a mere abstract statement of law, is a clear violation of the rule and preserves nothing for review because it does not undertake to relate wherein and why the court allegedly erred in any respect. Hines v. Sweet, 518 S.W.2d 710, 711(1) (Mo.App.1975); Kerr v. Ehinger, Inc., 515 S.W.2d 763, 765(2) (Mo.App.1974); Safe-Buy Real Estate Agency, Inc. v. Hemphill, 498 S.W.2d 599, 601(4) (Mo.App.1973).

We would be well within our rights to dispatch the appeal for violation of Rule 84.04(d). Nevertheless, since the transcript on appeal and the briefs are lean, we have, ex gratia, conned them all. Suffice it to say that proper determination of the cause rests wholly upon whether the oral...

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32 cases
  • Snadon v. Gayer
    • United States
    • Missouri Court of Appeals
    • April 10, 1978
    ...of a witness' testimony and reject the rest. North Side Finance Co. v. Sparr, 78 S.W.2d 892, 894(4) (Mo.App.1935)." Long v. Lincoln, 528 S.W.2d 512, 513(3) (Mo.App.1975); Corley v. Kiser, 556 S.W.2d 218, 222 See Mangan v. Mangan, 554 S.W.2d 418 (Mo.App.1977). Viewed in the light of that dir......
  • Trenton Trust Co. v. Western Sur. Co.
    • United States
    • Missouri Supreme Court
    • May 13, 1980
    ...may believe all, part or none of the testimony of any witness. Cockrum v. Cockrum, 550 S.W.2d 202, 205 (Mo.App.1977); Long v. Lincoln, 528 S.W.2d 512, 513 (Mo.App.1975). Accordingly, the statement of facts which follows treats the evidence in a light most favorable to the judgment of the tr......
  • King's Estate, In re, s. KCD
    • United States
    • Missouri Court of Appeals
    • October 2, 1978
    ...of the court is not a compliance with this rule." These requirements are mandatory and applicable to court tried cases, Long v. Lincoln, 528 S.W.2d 512 (Mo.App.1975). The Administrator does not identify the admitted extrinsic evidence or state wherein and why the court erred in admitting th......
  • Corley v. Kiser
    • United States
    • Missouri Court of Appeals
    • September 14, 1977
    ...of a witness' testimony and reject the rest. North Side Finance Co. v. Sparr, 78 S.W.2d 892, 894(4) (Mo.App.1935)." Long v. Lincoln, 528 S.W.2d 512, 513(3) (Mo.App.1975). See Mangan v. Mangan, 554 S.W.2d 418 Therefore, even though defendant Theodore Kiser testified that after he received th......
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