ANDERSON, Judge.
In this case plaintiff sued to recover a real estate broker's commission. The trial below resulted in a verdict and judgment for defendants. The trial court set aside this judgment on the ground that the verdict was against the weight of the evidence.
Prior to the events leading to this law-suit, defendants owned a house known as 38 Glen Eagles Drive in St. Louis County which they desired to sell. They also wanted to buy a new home. Upon hearing of this, Mrs. Love, representing plaintiff company, called upon defendants, and as a result, on March 3, 1945, the parties entered into the following contract:
"March 3rd
"I hereby give the exclusive agency to sell my house #38 Glen Eagles Drive, St. Louis Country Club Grounds to Mary Potter Love Inc. for a price of $55,000.00, house on one lot or $70,000.00, 2 lots (this price includes approximately $10,000.00 value of antiques) or for any price I agree to take for a period of one month from today, this according to the rules of exclusive contracts of St. Louis Real Estate Exchange. If 51 Westmoreland Place is sold meantime to anyone other than myself this contract is automatically void. Above price does not include eagle sconces and mirror in hall. It includes 4 marble fire places, 2 crystal chandeliers, 2 crystal sconces, one crystal bronze in hall, Holland Delft tiles in kitchen fireplace.
"(Signed) W. S. Medart"
The parties to the suit stipulated that the Real Estate Exchange commission on the sale of real estate in St. Louis County is five percent of the purchase price. They also stipulated that under the rules of said Exchange, in the event property is sold by an agent other than the agent holding the exclusive agency contract, such other agent shall receive 45% of the commission and the agent holding the exclusive contract shall receive 55% of the commission.
The evidence shows that for some time prior to the execution of the above contract, Whitelaw Terry, another real estate agent, had been engaged in trying to sell defendants' house, and had interested several persons in its sale. At the time the contract was signed, that fact was not disclosed to Mrs. Love; but the next day Mr. Medart called at plaintiff's office and informed Mrs. Love of that fact and requested a modification of the contract so as to permit the payment of the full commission to Mr. Terry in the event of a sale by him to those persons whom he had interested in the house. An agreement was reached modifying the contract of March 3rd, which agreement was reduced to writing and is as follows:
"This is a continuation and part of contract signed by William Medart with Mary Potter Love, Inc. March 3, 1945.
"It is agreed that in case of sale by Whitelaw Terry of 38 Glen Eagles to
"Mr. and Mrs. Firman Desloge, Jr.
"Mr. and Mrs. A. W. Morriss
"Mr. and Mrs. Samuel W. Conant
"Mr. and Mrs. William A. McDonnell
by March 16, 1945, full commission will be paid to Whitelaw Terry but Mary Potter Love, Inc. will act as agent for Mr. Medart in the regular manner. It is also agreed that Mr. Medart will extend the listing one month on the same terms as original contract and an additional month at a price that will allow for whatever inflation occurs in the meantime.
"(Signed) W. S. Medart"
The testimony of Mrs. Love regarding this was as follows:
"I think the following day Mr. Medart came to my office very much upset. Whitelaw Terry had been told that he had given me an exclusive agency and Mr. Medart told me that Whitelaw Terry was very much
upset and that he demanded that four names be excluded, and Mr. Medart asked me to exclude those four names, which he gave me. I said I might consider whether they have that right. Mr. Medart said, `I'm going away on the 16th.' * * * He said, `I would like to get this settled before I go.' I said, `Why not put in the 16th as a time limit — 'that was the fifth, from the fifth to the sixteenth — `for Mr. Terry to sell this —'.
"Mr. Medart and I agreed that (time limit) should be the 16th when he told me he was going away, going east. That was not put in writing at that time, but it was agreed on, and I was going to show the Catlin house with Mrs. Medart that afternoon, so I wrote this thing up. * * * I put the agreement I had with reference to those names in writing. The paper was also signed by Mrs. Medart.
"At the meeting at the Catlin residence, Mr. Medart was very anxious to see the four names. I told him that I had written up our agreement of the morning and handed it to him and he read it very carefully, and I handed her a copy. * * * I think at the time the contract was signed, I asked Mr. Medart if he didn't want me to tell Mr. Terry to be sure that Mr. Terry understood this, and Mr. Medart said no, he would talk to Mr. Terry and for me not to talk to him."
On cross-examination Mrs. Love testified:
"Q. At that conversation on March 5th did either you or Mr. Medart mention March 16th as being the expiration time on those four names? A. Yes.
"Q. You couldn't be mistaken about that, Mrs. Love? A. I told Mr. Medart I would be willing to exclude them but I thought there should be a period to it and he had been telling me he was leaving town on March 16th, and he said he wanted to have something settled by then. I said, `That gives Terry all that time; if he doesn't sell it by then I will take over.'
"Q. In other words, you felt if Mr. Medart was leaving town Terry couldn't sell it while he was gone? A. The agreement was he was to have ten days to sell it and he was representing they were very hot prospects and something should be closed during that time, and Mr. Medart was anxious to have it done before he left town. I suggested that he give Terry until he left and I would take full charge after he left.
"Q. In other words, for ten or eleven days, from the 5th to the 16th, — in other words, for eleven days for Mr. Terry you got sixty days more on your contract? A. Yes.
"I told Mr. Medart I would write it up. He was in the Catlin house when I brought this paper. It was cold in there and I was anxious to leave and took this paper out and told him this was the paper and asked him to sign it with the four names in it. I think when I got to the house I showed it to him and he read it very carefully. He signed it and gave it back to me."
Mr. Medart's testimony with respect to this matter was as follows:
"At that time (March 3rd, when Exhibit A was executed) I didn't think about Firmin Desloge and the other three men who had been contacted by Mr. Terry, but shortly thereafter I phoned Mrs. Love and told her that I thought it was only fair that these four names be excluded because Mr. Terry had done the work and I read the list of names to her on the phone.
"She told me on the phone that it was all right to exclude them, and the next morning I went to her office and she agreed to write up a statement and exclude the four names and said she would bring the agreement down to 51 Westmoreland at the time I was to meet her, which occurred a little later in the day. She brought Exhibit B down to the Catlin house, and I signed it down there. At the time I read it over I didn't see March 16th in there. There was no discussion of limitation of date as set forth in there. After noticing it in there, which I did a day or two later, I saw it in there, and an oral agreement was reached with Mrs. Love. We had an oral agreement that morning over the phone.
"The telephone call occurred during the evening, I think three or four nights later, at which time Mrs. Love and her brother came out to my house to see me. In the discussion I said that not knowing the 16th
was in there I thought it unfair to limit it to any time because of Mr. Terry doing the work with his four clients as specified in the contract. She telephoned me about nine-thirty or ten after the discussion saying that she would hold up to her agreement to eliminate that date if I would buy 51 Westmoreland Place."
On cross-examination Mr. Medart testified:
"I read the contract (Exhibit B) in the home at 51 Westmoreland, after going through the home to see it * * * and when reaching the outside hall or lobby where it was presented to me for signing. At that time my hands and feet were so cold from being in the house without heat, I reached down on a bench and signed it hurriedly without knowing the date was in there. * * * The oral agreement was three or four nights after the 16th. I would say somewhere in the neighborhood of the 18th or 19th of March that I noted it in the contract, the date. I noted the date, and I contacted Mrs. Love. She and her brother came to my home that evening for a discussion, and during the discussion — it was all about whether I would buy 51 Westmoreland, which I agreed with my wife was the place we wanted to buy and * * *. I did at that time make a verbal offer for the Catlin home. * * * Then as I stated and repeat, after the discussion at my home where I was to buy 51 Westmoreland, Mrs. Love told me on the phone — said she would eliminate the date for those four names on the contract if I would buy 51 Westmoreland.
"By oral agreement this contract was altered. It wasn't put in writing because I figured our word was our bond."
With respect to the alleged...
