Mercantile Trust Co. v. Niggeman

• Decision Date: 05 June 1906
• Parties: MERCANTILE TRUST COMPANY, Respondent, v. NIGGEMAN, Appellant
• Court: Missouri Court of Appeals

96 S.W. 293

119 Mo.App. 56

MERCANTILE TRUST COMPANY, Respondent, v. NIGGEMAN, Appellant

Court of Appeals of Missouri, St. Louis

June 5, 1906

Appeal from St. Louis City Circuit Court.--Hon. Walter B. Douglas Judge.

REVERSED.

STATEMENT.--In January, 1904, the defendant was the owner in fee of certain real estate, situated in the city of St. Louis, known and designated as No. 5807 Von Verson avenue. Defendant verbally authorized her son, R. A. Niggeman, to offer the property for sale. On the seventh of January, 1904, R. A. Niggeman, as the agent of his mother and in her name, entered into a written contract with the plaintiff, whereby it was appointed the agent of defendant to sell the property for $ 7,750, for which services it was to receive two and one-half per cent commission on the purchase price. It was agreed that defendant's title was to be perfect and the property free of incumbrances. Plaintiff, in a short time, found a purchaser, Mary L. Griffin, who was ready, willing and able to purchase the property for $ 7,750, and, on January 8 1904, signed and acknowledged a written agreement, whereby she bound herself to purchase the property at the price of $ 7,750 and deposited one hundred dollars with plaintiff as earnest money and as part payment of the purchase price. On being informed of the sale, defendant executed and acknowledged a general warranty deed conveying the premises to Mary Griffin and placed the same in the hands of John J McNeary, her brother, to be by him delivered to Mrs. Griffin on the payment of the purchase price. Mrs. Griffin and McNeary met at the Mercantile Trust Building, in the city of St. Louis to close the transaction. It appears that a city sewer, known os the Blackstone sewer, was at the time under construction in the district in which defendant's property is situated, and that plaintiff's legal counselor gave a written opinion to both parties that the proportionate share of the cost of the construction of the sewer was a lien upon the premises, and plaintiff advised McNeary to leave three hundred dollars of defendant's money on deposit with it to pay off the special tax bill against the property when it should be issued. McNeary declined to make the deposit, tendered the deed to Mrs Griffin and demanded the purchase price of her. She refused to accept the deed or pay the purchase price, for the reason defendant would not make the deposit to meet the sewer tax bill when it should be issued. Plaintiff thereupon returned to Mrs. Griffin the one hundred dollars deposited with it as part payment of the purchase price of the property and brought suit in a justice's court to recover its commission for making the sale. In due course the case was appealed to the circuit court, where, on a trial anew, plaintiff recovered judgment for the agreed per cent of commission, from which judgment defendant appealed.

Judgment reversed.

Henry A. Hamilton and Charles R. Hamilton for appellant.

(1) In cites of three hundred thousand inhabitants or more, a person offering real estate for sale without the written authority of the owner, or of his attorney-in-fact, appointed in writing, is guilty of a misdemeanor. Missouri Session Acts of 1903, page 161. (2) Whenever a contract has been entered into for the performance of an act which is contrary to the provisions of a statute law, the courts will not lend their aid for the enforcement of the contract. Where a penalty is imposed by statute for the doing of an act, it must be taken to be a thing forbidden, and a contract to do such thing is void. Addison on Contracts (10 Ed.), 71, 83; Bishop on Contracts, sec. 471; Chitty on Contracts (12 Ed.), 671, 673; Chitty on Contracts (12 Ed.), 704, 705; Lawson on Contracts 328, 329; Pollock on Contracts, star page 253; 2 Kent Com., star p. 467; 9 Cyc., 475, 476, 477; 15 Am. and Eng. Enc. of Law (2 Ed.), 939, 940, 941; Downing v. Ringer, 7 Mo. 585; Sprague v. Rooney, 104 Mo. 349, 16 S.W. 505; Connor v. Black, 119 Mo. 126, 24 S.W. 184; Haggarty v. Mfg. Co., 143 Mo. 238, 44 S.W. 1114; Fair Ass'n v. Carmody, 151 Mo. 566, 52 S.W. 365; Ullman v. Fair Ass'n., 167 Mo. 273, 66 S.W. 949; Amusement Co. v. Highlands Co., 90 S.W. 1020; Ashbrooke v. Dale, 27 Mo.App. 649; Bick v. Seal, 45 Mo.App. 475; Friend v. Parker, 50 Mo.App. 89; Swing v. Vinegar Co., 77 Mo.App. 391; Ehrhardt v. Robertson Bros., 78 Mo.App. 404; Board of Trade v. Brady, 78 Mo.App. 585; Pendleton v. Asbury, 104 Mo.App. 723, 78 S.W. 651; Tandy v. Commission Co., 87 S.W. 614; Coppell v. Hall, 7 Wallace 558. (3) A special tax does not become a lien or incumbrance on real property in the city of St. Louis until the taxbill is issued. Charter city of St. Louis, art. 6, secs. 24, 25; Everett v. Marston, 85 S.W. 540.

E. M. Grossman for respondent.

(1) When a contract to do a lawful thing has been executed, and one party has derived the benefits under it, even though the provisions of the law have not been complied with, with respect to the manner of entering into the contract, in the absence of any showing that both parties to the contract, agreed beforehand that the statute should be violated, the law will not permit that party to enjoy those benefits without paying the consideration therefor. Prietto v. Lewis, 11 Mo.App. 601; Hatch v. Hanson, 46 Mo.App. 323; Rozelle v. Beckmeier, 134 Mo. 380, 35 S.W. 1132; Smythe v. Hanson, 61 Mo.App. 285; Hemery v. Marksberry, 57 Mo. 399; Prince v. Baptist Church, 20 App. 332; Tooker v. Duckworth, 107 Mo.App. 231, 80 S.W. 963; Mandelbaum v. Gregovich, 17 Nev. 87; Loan & Trust Co. v. Hoffman (Idaho), 37 L. R. A. 509; Parton v. Hervey, 1 Gray 119; Strong v. Darling, 9 Ohio 201; Vinnig v. Bricker, 14 Ohio 331; Pennypacker v. Ins. Co., 80 Iowa 56; Harris v. Runnels, 53 U.S. 79; National Bank v. Matthews, 98 U.S. 621; Wright v. Horton, 12 App. Cas. 371 (H. of L.); Pangborn v. Westlake, 36 Iowa 546. (2) Whether or not a contract made in such a way as to come under a statute inflicting a penalty is void, depends on the legislative intent. Pangborn v. Westlake, 36 Iowa 546. (3) A real estate agent has performed his whole duty and is entitled to his commission whenever he finds and produces a purchaser ready and willing to buy according to the terms agreed on, or when he procures a valid contract of purchase from a solvent buyer. Hayden v. Grillo, 35 Mo.App. 647; Christensen v. Wooley, 41 Mo.App. 53; Gwinnup v. Sibert, 106 Mo.App. 709, 80 S.W. 589.

OPINION

BLAND, P. J. (after stating the facts)--

1. In 1903, the Legislature passed an act, consisting of two sections, the first of which reads as follows:

"In cities of three hundred thousand inhabitants or more, any person who shall offer for sale any real property, without the written authority of the owner of such property, or of his attorney-in-fact, appointed in writing, or of a person who has made a written contract for the purchase of such property, with the owner thereof, shall be deemed guilty of a misdemeanor and fined in a sum of not less than ten dollars nor more than three hundred dollars." [Laws of 1903, p. 161.]

It is conceded that defendant did not, in writing, appoint her son R. A. Niggeman, her attorney-in-fact to sell or offer for sale her real estate. On this evidence, defendant insists that the contract relied upon by plaintiff to recover was void, and that it was guilty of a misdemeanor in accepting the contract and offering the property for sale, and for these reasons no recovery can be had. Had defendant repudiated the sale when she learned of it, or refused to carry it out, we think there would be no doubt of the soundness of her position; but she did not do...