Martin v. Mercantile Trust Co.

• Decision Date: 09 July 1956
• Docket Number: No. 44821,No. 2,44821,2
• Citation: 293 S.W.2d 319
• Parties: Clyde L. MARTIN, Respondent, v. MERCANTILE TRUST COMPANY, a Corporation, Appellant
• Court: Missouri Supreme Court

Page 319

293 S.W.2d 319

Clyde L. MARTIN, Respondent, v. MERCANTILE TRUST COMPANY, a Corporation, Appellant.

No. 44821.

Supreme Court of Missouri, Division No. 2.

July 9, 1956.

Motion to Modify Opinion Denied Sept. 10, 1956.

Thompson, Mitchell, Thompson & Douglas, James M. Douglas, John O. Hichew, William G. Guerri, Robert K. Larson, St. Louis, for appellant.

J. L. London, Joseph J. Howard, Samuel B. Murphy, St. Louis, for respondent, Cook, Fairfield, Howard & Murphy, St. Louis, of counsel.

EAGER, Presiding Judge.

This is an action in quantum meruit by a real estate broker to recover for services which he claims were the procuring cause of the sale of the Mississippi Valley Trust Building in the City of St. Louis. The Mississippi Valley Trust Company and the Mercantile Commerce Bank and Trust Company were consolidated, effective August 31, 1951, and thereby became the Mercantile Trust Company, the present defendant; by reason of the consolidation, the building was no longer needed for bank purposes. Defendant entered into a contract on May 8, 1952, for the sale of the building for $1,600,000. Plaintiff alleged that he was the efficient and procuring cause of this sale. Defendant denied this claim in its entirety, and alleged that plaintiff was a mere volunteer, that he had abandoned his efforts to sell the building, and that a waiver of all right to commissions, made by the brokers who were actually handling the matter at the time the contract was executed, was binding on plaintiff. A verdict was returned in favor of plaintiff for $44,800, including interest.

Plaintiff's claim is actually based on the fact that he first contacted and worked with a brokerage firm in Hoboken, New Jersey, namely, C. B. Snyder Realty Co., and that the sale was eventually made through it; and that thereby he was the procuring cause. Prior to the effective date of the consolidation of the banks, and about May 22, 1951, plaintiff, a licensed real estate broker in St. Louis, contacted Mr. Hartnett, a vice-president of the Mississippi Valley Trust Company in charge of real estate, and inquired whether the building was to be sold; then or later he was told that it would be sold, that it would be all right for him to work on it, that the price was $2,000,000, that no one would have an exclusive listing, that a commission of 2 1/2% would be paid, and (at some time prior to June 25) that the bank reserved the right to reject all offers and to withdraw the building from the market. After plaintiff's second interview with Hartnett he wrote to four realtors in the New York area about the proposed sale, including the C. B. Snyder Realty Company and one Leo H. Zipkin. In the letter to the Snyder Company he inquired if it would be interested in the purchase at $2,000,000, offering to furnish further information. The Snyder Company was a corporation of which C. B. Snyder was president; it employed about eighty people and was organized into various departments. Plaintiff's letter reached Max Seigel, a vicepresident in charge of investments on a national basis, who listed the property for sale, and 'solicited some people.' He testified that one firm (Fisher-Landis) seemed interested. Seigel wrote plaintiff on June 13, 1951, stating that he would be interested if plaintiff would furnish more information, and inquired particularly about prospective rentals on the space which the bank was vacating, being the lower four floors. Plaintiff then obtained from Hartnett a general statement of the rentals and operating expenses, a more accurate description of the property, and a picture; he forwarded these to Seigel on June 21, 1951, together with certain other more general information, and stated: 'Price $2,000,000.00 and owners will pay me a commission of 2 1/2% which I will split with you 50-50 on sale to your client.' Seigel never specifically answered this proposition. Thereafter further correspondence followed between plaintiff and Seigel until approximately the end of 1951, with subsequent letters from plaintiff to Seigel dated January 28, February 23, and March 28, 1951, remaining unanswered. In the course of this correspondence plaintiff was asked for and furnished to Seigel additional information, including a detailed statement of the operating expenses, floor areas of vacant space, etc.; much of this he obtained from Hartnett; plaintiff urged from time to time that Seigel and his 'clients' come to St. Louis and inspect the property. On September 11, 1951, Seigel submitted to plaintiff a tentative offer from a prospective purchaser to pay $1,750,000 for the building, with $400,000 cash, and the balance on a first deed of trust as indicated, but conditioned, however, on obtaining suitable tenants for the vacated bank quarters at not less than $175,000 per year on a minimum ten year lease. This information was promptly conveyed to Hartnett by plaintiff, though the precise means is in dispute. Plaintiff and his wife testified that he read the letter to Hartnett over the phone, and he testified that he also showed it to Hartnett; also, that he later showed Hartnett various other letters from Seigel; Hartnett denied the reading of this letter and the showing of any letters to him, and denied that plaintiff ever told him of any connection with the Snyder Company until after the sale, but he admitted that he was told of the above offer and promptly turned it down because it was not actually an offer at all on account of the conditions affixed, which the bank would not assume. Plaintiff so informed Seigel on September 14, 1951, expressing the opinion that soon all available space could be leased, and stating again that the price quoted was $2,000,000. This offer was never substantially changed in the dealings between plaintiff and Seigel, but Seigel suggested that plaintiff get a better proposition from the bank; this plaintiff never did, although he wrote Seigel that Hartnett had agreed to submit an offer of $1,750,000. The principal difficulty in these negotiations appears to have arisen from Seigel's insistence that the bank furnish tenants for the vacant space or assume or guarantee its rentals, and the bank's positive refusal to do so. Plaintiff sent Seigel an appraisal of the value of the vacant space which he had procured independently; between the latter part of 1951 and May 7, 1952, plaintiff talked to Hartnett several times about possible tenants, and talked in person or by phone with three concerns regarding possible leases; two of these, however, had been in direct touch with the bank and one of them, the Federal Land Bank, eventually agreed to lease much of the space from the bank, shortly prior to the sale. Plaintiff wrote Seigel from time to time about the leasing prospects; Seigel, on December 18, 1951, merely confirmed his purchaser's original offer.

In July, 1951, plaintiff had taken Leo Zipkin, a New York broker, to see Hartnett and inspect the building, and Zipkin then made two offers for the building, both of which were rejected after Hartnett consulted certain other officers; one offer was for $1,500,000, all cash, and the other for a total of $1,800,000 on certain specified terms. Plaintiff had much correspondence with Zipkin; the latter insisted on a deal with 5% commission. In December, 1951, Zipkin came to St. Louis again, and told Hartnett that he could not understand the fact that the building was reportedly being offered in New York for $1,600,000; Hartnett testified that he then said that the bank's position had not changed; plaintiff testified that Hartnett then told them that the building was also being offered by another officer of the bank, a Mr. Obermann; Zipkin testified that Hartnett admitted that the building was being offered in New York for $1,600,000. Plaintiff never talked to Obermann at any time; his negotiations with Zipkin continued to the very time of sale, but they are largely immaterial here; plaintiff notified Zipkin by letter of May 8, 1952, that the building had been sold, but he did not notify Seigel.

Richard C. Obermann had been a vicepresident and senior real estate officer of the Mercantile Commerce Bank and Trust Company prior to the consolidation; thereafter, he occupied the same position in the consolidated bank; he and Hartnett held similar positions and had, for all practical purposes, equal authority. Both were trying to promote the sale, but apparently they did not discuss with each other the various brokers involved and their activities seem to have been more or less disconnected. Obermann sent out letters to various realtors and brokers advising them that the building was for sale, and sent such a letter to Seigel on January 22, 1952, offering the building at $2,000,000. Obermann denied any and all knowledge that plaintiff and Seigel had been in communication; Obermann did not know Seigel at that time, but had known C. B. Snyder for several years. At some time prior to January 27, 1952, Obermann called C. B. Snyder to inquire whether the latter would attend a real estate meeting in Washington on January 27-28, stating that he had certain properties for sale which he wanted to discuss with Snyder. The result was that Snyder and Obermann did there discuss this building in some detail and also others, and Snyder said that he or Seigel would follow the matter up. A price of $1,600,000 was apparently mentioned by Obermann as a possibility. Obermann admitted in his deposition that Snyder probably said in the original telephone conversation that he and Seigel were working on the deal, but this was generally contradictory to his testimony at the trial; he insisted, however, that he did not know of plaintiff's connection at all. After that meeting Seigel talked with Obermann by phone and went to St. Louis about February 6, 1952, to discuss and inspect the various buildings mentioned. He there met Hartnett, but plaintiff was not mentioned by anyone. Seigel thereafter conducted...