McClure v. Clements

• Decision Date: 22 January 1912
• Citation: 143 S.W. 82
• Parties: McCLURE v. CLEMENTS.
• Court: Missouri Court of Appeals

143 S.W. 82

McCLURE v. CLEMENTS.

Kansas City Court of Appeals. Missouri.

January 22, 1912.

1. WITNESSES (§ 156) — INCOMPETENCY — "PARTY."

Under Rev. St. 1909, § 6354, providing that "in actions where one of the original parties to the contract or cause of action in issue, and on trial, is dead, or is shown to the court to be insane, the other party to such contract or cause of action" shall not testify in his own favor, where a party sued on a contract is insane, another party thereto cannot testify in his own favor, though he be not a party to the action, his incompetency arising from defendant's insanity and not from his own interest, so that in a real estate broker's action for commissions for exchanging land against an insane owner, another broker who acted for the other party to the exchange under an agreement with plaintiff to divide the commissions received from their respective principals, could not testify for plaintiff, though not himself a party to the action; such other broker being a "party" to the contract sued on within the statute.

2. WITNESSES (§§ 159, 162) — COMPETENCY — INSANITY OF OTHER PARTIES.

A real estate broker suing an insane owner for commissions was disqualified from testifying to any understanding with defendant as to his employment, but could testify as to his contract with defendant's agent.

3. BROKERS (§ 65) — QUALIFICATIONS OF AGENT REPRESENTING BOTH PARTIES.

A real estate agent cannot represent both parties, and if he does, without their consent, cannot recover commissions from either.

4. ESTOPPEL (§ 68) — JUDICIAL PROCEEDINGS — INCONSISTENT POSITIONS.

If another real estate broker who agreed with plaintiff to divide commissions received by each from the exchange of the properties of their respective clients recovered commissions in a prior action for the benefit of himself and plaintiff from his client, after completing the transaction, on the theory that plaintiff was not the agent of defendant herein, the other party to the exchange, plaintiff could not recover commissions from defendant for the benefit of himself and the other broker on the theory that he was defendant's agent, but that defendant knew of his agency for the other party to the transaction and consented thereto.

Appeal from Circuit Court, Jackson County; T. J. Seehorn, Judge.

Action by James W. McClure against Thomas B. Clements. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

T. B. Wallace and Boyle & Howell, for appellant. Joseph S. Rust, for respondent.

ELLISON, J.

Plaintiff is a real estate agent, and his action is to recover a commission for the sale of real estate belonging to defendant. He had judgment in the circuit court. It appears that defendant owned a farm in Pettis county of 800 acres, and a house in Sedalia in the same county, and that one Reuben Mastin owned a large farm in Jackson county containing over 1,400 acres, and each wanted to sell. Plaintiff lived in Sedalia and claimed to represent defendant, while J. H. Lipscomb, a real estate agent, resided in Kansas city and represented Mastin. Mastin sold his farm to defendant, taking the latter's farm and Sedalia house in part payment. Lipscomb demanded a commission of Mastin which the latter refused to pay. A suit followed in which Lipscomb recovered a judgment for $3,594.45, which was affirmed in this court. Lipscomb v. Mastin, 142 Mo. App. 228, 125 S. W. 1177. After that suit was finally determined, plaintiff instituted this action.

The evidence establishes that plaintiff and Lipscomb were under an agreement with each other that they should share equally in the commissions to be charged to Mastin and defendant, and there was evidence tending to show that this defendant knew of this arrangement. The evidence also establishes that Lipscomb has paid plaintiff one-half the commission which he collected from Mastin, less one-half the expenses, including the suit; and that plaintiff is to pay Lipscomb one-half of what he may recover in this action, less one-half the expense of litigation in obtaining it. The evidence further disclosed that defendant is a very old man and that most of the negotiations of plaintiff and Lipscomb were with one Mahan, defendant's son-in-law and agent. It was further shown that defendant is now insane.

In this state of facts and of the record Lipscomb, over the objection of defendant, was permitted to testify in behalf of the plaintiff. We think he was not a competent witness. We do not put his incompetency on the ground that he was interested in the result of the cause of action, for the common-law disability by reason of interest is removed by the statute. Section 6354, R. S. 1909. The ground of his disability is that defendant is insane. While a witness who is interested where the other party is dead or insane is, in fact, for most purposes incompetent, the incompetency arises from death or insanity of the other party, and not from interest of the witness. The importance of this distinction is shown by the fact that for some purposes the interested witness is competent under the statute. Weiermueller v. Scullin, 203 Mo. 466, 101 S. W. 1088; Jackson v. Smith, 139 Mo. App. 691, 123 S. W. 1026. It is therefore urged by plaintiff that since Lipscomb's interest did not disqualify him, and since he is not a party to the suit or, as is claimed, to the cause of action, he is a competent witness. We agree he is not a party to the suit, but whether he is a party to the contract we will speak of further on.

It was held by the Supreme Court in construing the statute in Looker v. Davis, 47 Mo. 140, that to render a witness incompetent he must have been, not only a party to the original contract in issue, but also a party to the record in the suit. The same ruling was made in Kenyon v. Peirce, 17 R. I. 794, 24 Atl. 825; Chamberlin v. Chamberlin, 4 Allen (Mass.) 184; Bigelow v. Heyer, 3 Allen (Mass.) 243; Granger v. Bassett, 98 Mass., loc. cit. 468; Wright v. Gilbert, 51 Md. 146, 156. Some of those decisions contain clear statements of the reason for such construction of the statute, and cite Looker v. Davis with other authorities. We find that Looker v. Davis has been affirmed in Klostermann v. Loos, 58 Mo. 290, 294, and State ex rel. v. Huff, 63 Mo. 288; and that the necessity of being a party is recognized in Chapman v. Dougherty, 87 Mo. 617, 626, 56 Am. Rep. 469. When those cases were decided, our statute was like the statutes in the states where the other decisions were rendered. But our statute was materially amended by the laws of 1887, page 287, carried into each revision down to the present one of 1909. Before the amendment the proviso read: "Provided, that in actions where one of the original parties to the contract or cause of action in issue and on trial is dead, or is shown to the court to be insane, the other party shall not be admitted to testify in his own favor." The peculiar wording will be noticed; the party dead or insane is described as one that must have been a party to the contract or cause of action, but the other is simply denominated "the other party," without describing him. As is said in Kenyon v. Peirce, supra, the words "the other party" "may mean the other party to the proceeding, or the other original party to the contract or cause of action, who is also a party to the proceedings." So the Supreme Court of Massachusetts in Chamberlin v. Chamberlin, supra, said that the statute "established the general rule that parties should be admitted to testify in their own behalf. To...