McIntosh v. Frisinger

• Court: Missouri Court of Appeals
• Writing for the Court: PAUL E. CARVER; All concur, except BILLINGS
• Citation: McIntosh v. Frisinger, 507 S.W.2d 419 (Mo. App. 1974)
• Decision Date: 12 March 1974
• Docket Number: No. 9539,9539
• Parties: Myron McINTOSH, d/b/a Myron McIntosh Agency, Plaintiff-Appellant, v. James C. FRISINGER et al., Defendants-Respondents. . Springfield District

Page 419

507 S.W.2d 419

Myron McINTOSH, d/b/a Myron McIntosh Agency, Plaintiff-Appellant, v. James C. FRISINGER et al., Defendants-Respondents.

No. 9539.

Missouri Court of Appeals. Springfield District.

March 12, 1974.

L. Thomas Elliston, Myer, Webster, Perry & Elliston, Webb City, for plaintiff-appellant.

Nelen Berry, Neosho, for defendant-respondent, Pat Begey.

PAUL E. CARVER, Special Judge.

This is an appeal from a court-tried case in which Myron McIntosh, a real estate broker doing business as Myron McIntosh Agency, appeals from an adverse judgment.

McIntosh filed his amended petition in three counts. In court I he claims he has in his possession $3,000 which he holds as an escrow agent, and which the defendnats James C. Frisinger and Barbara Frisinger are demanding. He further alleges the defendants Frank Begey and Pat Begey are entitled to the $3,000 as a result of a forfeiture of a real estate contract by the Frisingers, and that he is entitled to $1,500 of the money held by him in accordance with his listing contract. In count II he states that Frank Begey and Pat Begey, his wife, entered into a listing contract with him to sell 20 acres of land in Newton County, Missouri; that he found buyers, namely James C. and Barbara Frisinger, 'who were ready, willing, and able to purchase the land'; and that the Begeys refused to pay him his commission of $900. In count III he complains of a conspiracy between the Begeys and Frisingers to deprive him of $900; that the conspiracy was 'unlawfully and wantonly' made and that he is entitled to $1,500; and prays that he recover $900 from both the Begeys and Frisingers as punitive damages.

Pat Begey filed her answer to plaintiff's petition. Frank Begey was deceased. The action was continued against Pat Begey after the death of her husband. As to count I, she admitted the execution of the listing contract and the contract of sale, the deposit of $100 as earnest money with plaintiff by the Frisingers. She further stated that Frisingers refused to complete the sale and that she claimed no interest in the $3,000, except $50, one-half of the $100 earnest money deposited with plaintiff. She requested the money held by plaintiff be paid as follows: 1) the sum of $2,900 to James C. and Barbara Frisinger; 2) the sum of $50 to plaintiff; and 3) the sum of $50 to her in accordance with the provisions of the listing contract regarding forfeiture of the earnest money. As to count II, she denied that plaintiff produced 'a buyer ready, willing, and able' to purchase the property. She denied generally all of count III of plaintiff's amended petition.

Defendants Frisinger also filed answer to plaintiff's amended petition. As to count, I they admitted that the plaintiff is entitled to $50 of the funds and that the defendants Frank Begey and Pat Begey were entitled to $50 of the funds and that they were entitled to $2,900. As to counts II and III, defendants Frisinger generally denied the allegations therein, and, by way of affirmative relief, filed their counterclaim against plaintiff, which is as follows:

'Now comes (sic) the Defendants, James C. Frisinger and Barbara Frisinger and for cause of action state as follows:

'1. Defendants state that on May 8, 1972 the Plaintiff, as a real estate broker, sold for the Defendants a tract of real estate to Charles Zarbano and Phyllis Jean Zarbano for the total sum of $18,250.00 and that after all the expenses were paid including a commission to the Plaintiff and including the payment of a FHA Loan these Defendants were entitled to a balance of $5,569.28. That the Plaintiff has paid to the Defendants the sum of $2,669.58 leaving a balance due to said Defendants in the sum of $2,900.00. That the Defendants have made demand upon the Plaintiff for the sum of $2,900.00 but that the Plaintiff has refused to pay said amount to these Defendants and has converted this amount of money to Plaintiff's own use.

'That the Plaintiff received the $2,900.00 as a trustee or fiduciary and in a trust capacity and has willfully and intentionally and maliciously kept the Defendants from receiving the sum of $2,900.00 and all to the damage of the Defendants in interest at the rate of $15.00 per month and that said Defendants are entitled to punitive damages in the sum of $2,500.00.

'WHEREFORE, (Defendants pray) judgment as against the Plaintiff for the sum of $2,900.00 as money actually owed and interest at the rate of $15.00 per month from the date of the filing of this action and punitive damages in the sum of $2,500.00.'

The evidence discloses that on February 2, 1972, Pat Begey and her husband contacted plaintiff concerning the sale of their property located near Seneca in Newton County, Missouri. After discussion with plaintiff, they listed the property with him to sell. An exclusive and special printed listing agreement was prepared by plaintiff listing the property for sale and was signed by the Begeys. The listing agreement was accepted by 'Moore' on behalf of Myron McIntosh Agency. There is no dispute concerning the preparation by plaintiff of the listing contract, set forth below, or its execution by the Begeys.

'2/2 1972

'To MYRON McINTOSH AGENCY, Joplin, Missouri

'In consideration of your listing and endeavoring to sell the property described on the reverse side hereof, I hereby grants to you the sole and exclusive right to sell the same and I hereby relinquish my right to sell said property. Should said property be sold or exchanged or a purchaser be found therefor by you, or by myself or by any other person, at the price and upon the terms specified on the reverse side hereof, or at any price or terms which I may authorize or accept, I agree to pay you 6% percent of the sale price, payable at the office of Myron McIntosh Agency in Joplin, Missouri, and I will promptly execute to purchaser and deliver to you for delivery to purchaser, a warranty deed of said property with a complete abstract showing good and merchantable title to date of transfer, or enter into contract for deed on the 'Real Estate Contract for Deed' form of the Myron McIntosh Agency.

'Should other property be accepted by me in exchange, I hereby consent to your representing and accepting compensation from all parties to the transaction.

'I agree that you and your clients shall have access to the property at all reasonable times to show the same, and I will give all reasonable assistance in making a sale of said property.

'I agree that out of any forfeited earnest money one-half shall go to the Myron McIntosh Agency.

'You are authorized to place your sale sign on the property.

'This contract shall terminate on the 2 day of May, 1972, except that if the property, within ninety (90) days after such termination date, shall be sold to any person to whom you or anyone in your behalf has shown said property, I will pay to you the commission above specified.

Accepted _ _ 19_ _

Myron McIntosh Agency

By /s/ Moore

X /s/ Frank Begey

Owner

X /s/ Pat Begey

Husband or Wife'

Thereafter, on April 5, 1972, through plaintiff's efforts the Begeys entered into a real estate contract with the Frisingers, providing for the Frisingers to buy the Begey land. This contract was 'voided' because of the inability of the Frisingers to raise the earnest money.

The Frisingers also had land listed with plaintiff for sale but the proposed purchaser, hereinafter referred to as Zarbano, could not at that time raise the necessary money to carry out the purchase agreement.

On April 7, 1972, the Begeys entered into a new real estate contract with the Frishingers designating the purchase price at $15,000 and an earnest money deposit was required in the sum of $100. The form contract was prepared by plaintiff in his office. It provided for a purchase price of $15,000 and is set forth in part as follows:

'. . . FIFTEEN THOUSAND AND NO/100 ($15,000.00) DOLLARS, to be paid by the buyer as follows: '100.00 at the time of the execution and delivery of this agreement, the receipt of which is hereby acknowledged by the seller and which is deposited with MYRON McINTOSH AGENCY, the agent, as earnest money and as part of the purchase price and the balance thereof is to be paid in the following manner, to-wit: $2,900.00 cash on delivery of deed as herein provided: the balance of the purchase, $12,000 shall be paid by the buyers and sellers executing a Contract for Deed on the remaining amount of $12,000, payable at $95 per month, including interest at the rate of 7 1/4% per annum.

'It is further agreed by all parties hereto that the above Contract for Deed shall be on a three year time period basis, at which time the property shall be refinanced, Contract for Deed paid in full, and Warranty Deed issued and delivered.

'The sale under this contract shall be closed under the GENERAL SALES CONDITIONS AND CLOSING PRACTISES as set forth on the reverse side hereof and hereby made a part of this contract, and subject to any SPECIAL AGREEMENTS between buyer and seller, also set forth on the reverse side hereof (if any) and hereby made a part of this contract, at the office of MYRON McINTOSH AGENCY.

'The seller shall pay the agent 6% for commission at the time of the closing of this sale.

'IN WITNESS WHEREOF, Said parties hereto subscribe their names.

EXECUTED IN TRIPLICATE.

NOTE: Buyers should employ a licensed attorney to examine title to said real property.

_ _

MYRON McINTOSH

Real Estate Agency Personalized Service

PHONE MAYFAIR 3--5480

2915 MAIN ST.

JOPLIN, MO.'

Sellers

/s/ Frank Begey

FRANK BEGEY

/s/ Pat Begey

PAT BEGEY

/s/ James C. Frisinger

JAMES C. FRISINGER

Buyers

/s/ Barbara Frisinger

BARBARA FRISINGER

On the back of the contract of sale and referred to as 'General Closing Conditions and Sales Practises' the following conditions were stated:

'. . . It is understood and agreed that time is the essence of this agreement and if the seller has kept seller's part of this agreement by furnishing good and sufficient...