OPINION
ANDERSON
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 lawsuit, 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 oral agreement, Mrs. Love testified:
'I
told him, 'I have an idea in my mind which I will talk
over with my brother and I will call you when I get back
home.' When I got back I called him and I said, 'If
you...