McMonigal v. North Kansas City Development Co.
| Citation | 129 S.W.2d 75,233 Mo.App. 1040 |
| Parties | HARRY McMONIGAL ET AL., RESPONDENTS, v. NORTH KANSAS CITY DEVELOPMENT CO., APPELLANT |
| Decision Date | 06 March 1939 |
| Court | Court of Appeals of Kansas |
Appeal from the Circuit Court of Jackson County.--Hon. Brown Harris Judge.
AFFIRMED.
Judgment affirmed.
James S. Simrall, Conn Withers and Henry L. Jost for appellant.
(1) Authority of Zimmer to make an oral agreement, on behalf of defendant, hiring plaintiff Taylor as a subagent and agreeing to pay him one-half of a real estate commission, cannot be implied from the mere fact that he was an "agent for real estate sales of the defendant," nor can it be implied on and from the evidence in this case which tended to show and did show that he never at any time exercised any authority or did more than to solicit prospective purchasers and reported obtained offers to defendant's president Mr. Curran, for his acceptance or rejection. Craver v House, 138 Mo.App. 251; 2 C. J. S., Agency, p. 1358, sec. 1; 1 Mechem on Agency (2 Ed.), p. 569, sec. 797; Hodkinson v. McNeal Mach. Co., 142 S.W. 457, 161 Mo.App. 87; Arpe v. Brown (Mo. App.), 51 S.W.2d 225, Winkleblack v. Bank, 155 Mo.App. 1, 13; Matlack v. Paregoy, 188 Mo.App. 95; Kyle v. Gaff, 105 Mo.App. 672, 676; Stratton v. Cole, 203 Mo.App. 257, 265; Wetmore v. Crouch, 150 Mo. 671, 681. (2) The fact that defendant gave Zimmer the title of "industrial agent" on its office door and on its letterheads did not constitute a holding out by defendant of Zimmer as a general agent, and is insufficient in fact and in law from which to imply general authority to Zimmer to hire Taylor as subagent and bind defendant with an oral agreement to pay Taylor one-half of a regular real estate broker's commission. Peninsular stove Co. v. Adams Hardware & Furniture Co., 93 Mo.App. 237; Stratton v. Cole, 203 Mo.App. 257, 265; Kyle v. Gaff, 105 Mo.App. 672; Craver v. House, 138 Mo.App. 251; 2 C. J. S., Agency, 1358, sec. 1; 1 Mechem on Agency, (2 Ed.), p. 569, sec. 797; Winkleblack v. Bank, 155 Mo.App. 1, l. c. 13; Matlack v. Paregoy, 188 Mo.App. 95; Montbriand v. Scruggs (Mo. App.), 46 S.W.2d 211. (3) Since the petition alleged, and the evidence showed, that plaintiffs acted together and jointly in disclosing the name of prospective purchaser to Zimmer, and acted jointly in the effort, and jointly participated in the conversation with Zimmer, out of which plaintiffs claim the oral agreement between Zimmer and Taylor arises, plaintiffs cannot maintain this suit for one-half of the commission jointly owned by Ball of Moseley & Company and Taylor. Sec. 702, R. S. Mo., 1929; Johnson v. St. Joseph Stock Yards Bank, 102 Mo.App. 395; Peters v. McDonough, 37 S.W.2d 530, 327 Mo. 482; Bray v. Riggs, 110 Mo.App. 630, l. c. 633. Plaintiffs' remedy, if any they have, is against Ball and Moseley & Company under Ball's agreement with and promise to Taylor to divide, and not in this action against defendant. Bray v. Riggs, 110 Mo.App. 630; 3 C. J. S., Agency, p. 100. Plaintiffs as copartners are without lawful right to sue on the alleged oral agreement of Taylor and Ball with Zimmer. (4) The evidence wholly fails to establish a promise of Zimmer to Taylor that defendant would pay to him one-half of a real estate broker's commission. Grant v. Winn, 7 Mo. 188; Semon v. Illgenfritz, 223 Mo.App. 546, 553; Barber v. Ozark Improvement Co., 131 Mo.App. 717; Wilkerson v. Farnham, 82 Mo. 672, 679. (5) If any oral agreement between Taylor and Zimmer was established by the evidence, it was not lawful and enforceable because oral and to answer for the debt and obligation of Ball, and falling within the Statute of Frauds, and the court erred in denying defendant the benefit and protection of the statute. Sec. 2967, R. S. Mo. , 1929; Boyd v. Paul, 125 Mo. 9, 14; Haeberle v. O'Daly, 61 Mo.App. 390, 394; Meegan v. Illinois Surety Co., 195 Mo.App. 423, 427. (6) Testimony of plaintiff Taylor and his witnesses Crooks and Franklin, as to declarations and acts of Zimmer, admitted over the objections of defendant that said testimony was hearsay and not binding on defendant, and incompetent to show authority or the scope of the authority of Zimmer, was improperly received to the prejudice of defendant, was of no probative force or value, and cannot and does not furnish any legal foundation to support the verdict and judgment which depends upon it. State ex rel. Funsten Co. v. Becker, 1 S.W.2d 103, 318 Mo. 516; Peninsular Stove Co. v. Adams Hdw. & F. Co., 93 Mo.App. 237; C. I. T. Corp. v. Hume (Mo. App.), 48 S.W.2d 154; Rector v. Mulford Co. (Mo. App.), 185 S.W. 255, 256; Meux v. Haller 179 Mo.App. 466; Alt v. Grosclose, 61 Mo.App. 409, 412; McKelvey v. Marquette Iron & Steel Co. (Mo. App.), 24 S.W.2d 702. (7) All testimony in the case of acts and declarations of Zimmer and of defendant's president Curran occurring after the month of November, 1936, admitted for the obvious purpose of showing ratification, was improperly admitted, over defendant's objections, and moreover because said evidence did not show or tend to show ratification. And the court further erred in keeping the issue and claim of ratification in the case, over the objections of defendant by refusing defendant's Requested Instruction "J," and thus allowing the jury to take said evidence into account and base their verdict thereon. Craver v. House, 138 Mo.App. 251; Homan v. Brooklyn Life Ins. Co., 7 Mo.App. 22; Bovard v. Mergenthaler Linotype Co., 209 S.W. 965, l. c. 967. (8) Testimony elicited by plaintiffs' counsel in the crossexamination of defendant's president Curran and of Mr. Zimmer, and admitted over the objection of defendant that the same injected a false and collateral issue to the prejudice of defendant, that the Chicago, Burlington and Quincy Railroad owned one-third of the capital stock of defendant corporation and one-third of its property and assets, and was greatly interested in the sale of its industrial property in North Kansas City, Missouri, and in bringing to and locating in said industrial district factories and industrial plants, from which the Burlington Railroad would derive profits and increased revenues by reason of increased freight tonnage handled by it in and to and from said industrial district, tended to and did divert the jury from a fair and impartial consideration of the issues in this case as between the record parties hereto, and was reversible error. Moore v. Doerr, 199 Mo.App. 428, 203 S.W. 676; Fairbanks Canning Co. v. London Guaranty & Accident Co., 154 Mo.App. 327, l. c. 337. (9) The court erroneously and prejudicially to defendant refused to admit competent evidence offered by defendant, of office records made up in the regular course of business by Zimmer, transmitting and reporting progress of the Crooks Company negotiations to defendant's president, Mr. Curran, and Mr. Curran's direction with reference thereto, the same being defendant's Exhibits 14 to 18, both numbers inclusive. Brownfield v. Phoenix Ins. Co., 26 Mo.App. 390. (10) Modified Instruction No. 1 and Instruction No. 2 for the plaintiff's were both erroneous for the following reasons because: (a) There was no competent evidence whereon to submit the case at all. The hearsay evidence as to Zimmer's declarations and acts cannot under the authorities cited furnish any basis for this instruction, for that a verdict resting purely on hearsay is of no validity and will be set aside. Childers v. Pickenbaugh, 219 Mo. 376, l. c. 436; Van Bibber v. Swift & Co., 286 Mo. 317, l. c. 336, 337, 228 S.W. 69, 76. (b) Said instruction authorized the jury to find an oral agreement materially different from that alleged and entirely different from the one attempted to be shown by the evidence. (11) The giving of Instruction 1-B by the court of its own motion authorizing the jury to "assess damages" in favor of plaintiffs was not responsive to the petition, but contrary thereto, and was therefore error--the petition declaring on debt and seeking a judgment for money alleged to be owing on a performed contract. (12) The verdict returned by the jury in favor of plaintiffs assessing damages in favor of plaintiffs, is not responsive to the petition, but contrary thereto, since the petition declares on debt and seeks a judgment for money alleged to be due plaintiffs on a fully performed contract, and said verdict is void on its face, and being void furnishes no legal foundation to support the judgment in this case. The judgment, therefore, should have been arrested, and should now be reversed on this ground. Cosgrove v. Leonard Mer. & Realty Co., 175 Mo. 100, 111; Marr v. Zeidler, 145 Mo.App. 199, 206; Spangler-Bowers v. Benton, 229 Mo.App. 918, 83 S.W.2d 170. The verdict is also vague and indefinite, in that it cannot be ascertained therefrom how much of said allowed damages is interest, as ordered by the court under modified Instruction No. 1 for plaintiffs, and moreover the allowance of interest by a jury in a jury award of damages, is reversible error. Lober v. Kansas City, 339 Mo. 1087, 100 S.W.2d 267, 269.
Henri L. Warren for respondent.
(1) Zimmer was a general agent. Farm & Home v. Stubbs, 98 S.W.2d 320. "Industrial" means business employing much labor and capital. Words and Phrases, III. "Acting within the scope of his authority" is not a mere conclusion and is sufficient after verdict. Rudd v Rudd, 13 S.W.2d 1082; Mann v. Farmers Bank, 50 S.W.2d l. c. 150; Pickrel v. Pickrel, 86 S.W.2d l. c. 344; Thimmig v. General Talking Picture Corp., 85 S.W.2d 208; Farm & Home v. Stubbs, 98 S.W.2d 330; Bank of Ferguson v. Black, 115 S.W.2d 29; Sinclair Refining Co. v. Bank of Portedgeville, 91 S.W.2d 125; John P. Mills Organization v. Bell, 37 S.W.2d 683; Klaber v. Fidelity Building Co., 19 S.W.2d 763; Smith v. St. Louis Public Service...
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