Luzzadder v. McCall

• Decision Date: 05 November 1917
• Docket Number: No. 12373.,12373.
• Citation: 198 S.W. 1144
• Parties: LUZZADDER v. McCALL.
• Court: Missouri Court of Appeals

198 S.W. 1144

LUZZADDER v. McCALL.

No. 12373.

Kansas City Court of Appeals. Missouri.

November 5, 1917.

Rehearing Denied December 3, 1917.

Appeal from Circuit Court, Buchanan County; Thos. B. Allen, Judge.

"Not to be officially published."

Action by George S. Luzzadder against David McCall. From a judgment for plaintiff, defendant appeals. Affirmed.

S. P. Reynolds and Randolph & Randolph, all of St. Joseph, for appellant. B. G. Voorhees, of St. Joseph, for respondent.

TRIMBLE, J.

Plaintiff sued to recover a real estate broker's commission. He obtained judgment for the full amount asked, and defendant appealed.

The cause of action alleged in the petition is that defendant employed plaintiff, a real estate agent, to sell or assist in selling defendant's farm, and agreed to pay $425 as a commission for plaintiff's services in case a sale was made; that by virtue of plaintiff's services defendant was enabled to sell and did sell his farm, on the terms and at the price required, to one Belle Waller, and received the purchase price therefor, and thereby became liable to plaintiff for said sum of $425. The answer was a general denial.

It is unquestioned that plaintiff was a real estate broker, and was employed by defendant as alleged. The evidence also clearly tended to show that the agreement was that plaintiff should receive $425 for his services if a sale was effected; also that plaintiff expended considerable effort and rendered effective services in endeavoring to sell the land to Mrs. Waller. The evidence, however, did not show a conveyance from defendant directly to Mrs. Waller, but a conveyance from him to one Klepper and from Klepper to her; but plaintiff introduced evidence of facts and circumstances in support of his contention that the sale was, in reality, from defendant to Mrs. Waller, and that the passing of the title through Klepper was a mere sham and artifice, resorted to in order to defeat plaintiff's commission. The rule is well established that:

"Where the broker is the instrument through which the sale has been effected, no sort of artifice, deceit, or fraud will deprive him of his commission." Corder v. O'Neill, 176 Mo. 401, loc. cit. 438, 75 S. W. 764, 774.

But it is urged that there is no evidence tending to show a sale from defendant to Mrs. Waller, or to show that the passing of the title through Klepper was a mere sham and artifice. We cannot agree to this. The record discloses evidence of facts and circumstances from which a jury could reasonably find that the conveyance from defendant to Klepper and from him to Mrs. Waller was a mere artifice, to cover up the fact that the sale was in reality one from defendant to Mrs. Waller; that Klepper was nothing more than a conduit of title, and was in no sense a purchaser of the farm.

In addition to this, appellant is not in a position to claim there was no evidence to justify the verdict, as he has not brought an abstract of all the testimony. The record shows that the deposition of defendant was offered by the plaintiff as admissions against interest, and was admitted in evidence; but the deposition is omitted from the abstract. The same is true of certain evidence introduced by plaintiff in contradiction of witnesses offered by defendant, showing prior statements made under oath which were in conflict with the testimony given on the stand. Where the validity of the judgment is attacked upon the ground of no evidence to support it, the appellate court is not in a position to say the trial court erred, unless the entire evidence is presented in the abstract. Gooden v. Modern Woodmen of America, 194 Mo. App. 666, 675, 189 S. W. 394.

Plaintiff placed the defendant and also Mrs. Waller on the stand, and it is urged that reversible error was committed, in that the court permitted plaintiff to violate the rule against impeaching or contradicting one's own witness. It is true the general rule is that a party introducing a witness and thereby vouching for his veracity cannot impeach that witness' testimony, either by general evidence as to his reputation or by evidence of contradictory statements made elsewhere. Creighton v. Modern Woodmen, 90 Mo. App. 378; Dunn v. Dunnaker, 87 Mo. 597. An exception to the rule exists whenever by reason of former statements the witness has entrapped the party into putting him on the stand and the latter is surprised at the contrary evidence given. In such case a recusant witness may be cross-examined by the surprised party. Beier v. St. Louis Transit Co., 197 Mo. 215, 234, 94 S. W. 876. See, also, the authorities above quoted.

As to the witness Mrs. Waller, the abstract shows that on a former occasion she had testified concerning a certain check for $500 as being given to bind the bargain for the farm. At the trial herein she refused to testify about it, saying she did not remember what it was for. After a showing to the court that she had testified on the subject at the former trial and that plaintiff was now surprised at her testimony, the court permitted plaintiff's attorney to examine her as to what she had formerly testified on that subject and to attempt to refresh her recollection in reference thereto. There was no error in so doing under the above authorities. The witness' former testimony was not offered or...