Meyers v. Kilgen

• Decision Date: 04 November 1913
• Citation: 177 Mo. App. 724,160 S.W. 569
• Parties: MEYERS v. KILGEN.
• Court: Missouri Court of Appeals

160 S.W. 569

177 Mo. App. 724

MEYERS v. KILGEN.

St. Louis Court of Appeals. Missouri.

November 4, 1913.

1. BROKERS (§ 88) — COMMISSIONS — EVIDENCE — PERFORMANCE. Evidence in an action for commissions for negotiating the sale of real estate held to make it a jury question whether plaintiff substantially performed the contract executed between himself and another, who acted in the name of a certain realty company.

2. BROKERS (§ 88) — COMMISSIONS — JURY QUESTION.

Evidence in an action for commissions for negotiating the sale of realty held to make it a jury question whether defendant, in making the contract with plaintiff, acted for himself, or for the agent of his company, or for a certain realty company.

3. BROKERS (§§ 49, 88) — COMPLIANCE WITH CONTRACT — SUBSTANTIAL PERFORMANCE.

Substantial compliance with the terms of a contract authorizing the sale of realty will entitle an agent to commissions; the question of compliance usually being for the jury.

4. PRINCIPAL AND AGENT (§ 132) — CONTRACT — PERSON BOUND.

It is not necessary, to bind one as principal, that a contract should be executed in his name, if it can be ascertained from the whole instrument that the alleged agent acts as such and intends to bind his principal and not himself.

5. PRINCIPAL AND AGENT (§ 136) — CONTRACT — PERSONS BOUND.

As a rule, the acts of one who purports to act as agent for another are considered the acts of the principal, if within the scope of the agent's authority, and hence will not make the agent personally liable.

6. PRINCIPAL AND AGENT (§ 136) — PERSON BOUND.

One contracting as agent will be personally liable, whether known as an agent or not, if he contracts in his own name or voluntarily incurs an express or implied liability.

7. PRINCIPAL AND AGENT (§ 193) — JURY QUESTION.

While the interpretation of a contract claimed to have been made by an agent is for the court, it is generally for the jury to determine whether it was made for a principal or was the alleged agent's personal contract.

8. EVIDENCE (§ 459) — PAROL EVIDENCE — VARYING CONTRACT — PARTIES.

Parol evidence is admissible to show that a written contract made in the name of an agent was in fact made for an undisclosed or unnamed principal.

9. PRINCIPAL AND AGENT (§ 136) — CONTRACT — PERSONS BOUND.

An agent may conduct negotiations so as to bind himself personally, though he discloses his principal; it being a question of the intention of the parties as to who is bound.

10. TRIAL (§ 69) — CONDUCT OF CASE — REOPENING FOR EVIDENCE.

After the court refused to direct a verdict for defendant in an action for commissions for negotiating the sale of realty, in which it was a material issue as to who was bound by the contract between defendant and plaintiff, it was an abuse of discretion not to permit plaintiff to reopen his case to show that defendant intended to bind himself alone.

11. APPEAL AND ERROR (§ 970) — REVIEW — DISCRETION OF TRIAL COURT — REOPENING CASE.

The trial judge's discretion in determining whether to reopen case after the conclusion of the evidence, is subject to review.

Appeal from St. Louis Circuit Court; Wm. M. Kinsey, Judge.

Action by John C. Meyers against Rudolph F. Kilgen. From a judgment for defendant, plaintiff appeals. Reversed, and remanded for further proceedings.

This action was commenced before a justice of the peace to recover $500 alleged to be due plaintiff by defendant as a commission for selling and negotiating the sale of certain real estate in the city of St. Louis. Plaintiff recovering before the justice, defendant appealed to the circuit court. At the trial there before the court and a jury, plaintiff introduced testimony substantially as follows:

On the 2d of November an agreement was entered into between plaintiff and the Rollice Realty Company, the agreement being signed in the name of this Realty Company by McCormick-Kilgen-Rule Real Estate Company, as agent, by R. F. Kilgen, president, and was also signed by plaintiff. In this agreement it is set out that plaintiff, on November 2, 1907, had paid $1000 "earnest money and part purchase money for a certain improved piece of property, lying in the city of St. Louis," describing it. The agreement proceeding: "Which property is known as the Ice Rink, and is this day sold to the said John C. Meyers for the sum of $25,000, payable as follows: The above $1000 cash; $2000, January 1, 1908; $2000, July 1, 1908; $300, September 1, 1908; $12,000, in five years, and $5000, in three years, all notes to be secured by deed of trust on the said premises with six per cent interest, except the $12,000 five-years note, which is to be five per cent interest. The title of the said property is to be perfect and to be conveyed by a warranty deed, free from all incumbrance excepting taxes for the year 1908 and thereafter. Said deed and conveyance to be made on the payment of an aggregate sum of $5000, on the payment of which sum the above deed of conveyance is to be delivered to the purchaser. A contract of the above terms of stipulation shall be entered into within thirty days from date; failing to do so the above earnest money shall be forfeited, but such forfeiture shall not release said purchaser herein from any liability for the fulfillment of this contract of sale or the payment of money herein mentioned." Indorsed on this agreement is this: "This agreement extended to December 10, 1907. R. F. Kilgen."

It appears that after this agreement was entered into plaintiff, according to his testimony, had a contract with Mr. Kilgen for payment to him of a commission if the sale went through, a memorandum of which was reduced to writing and introduced in evidence and is as follows:

                                            "Nov. 2, '07
                

"John C. Meyers: After $5000 been paid will allow or pay you $500 commission.

                                           "R. F. Kilgen."
                

Plaintiff testified that this referred to the above agreement and that after that agreement had been made, which is designated as "Exhibit A," the memorandum signed by Kilgen being marked as "Exhibit B," he took possession of the building, organized the company and paid Kilgen the consideration, giving him a note for $25,000, bought the building and carried out the conditions of the agreement. He further testified that when this memorandum about the payment of the $500 commission was made the $5000 there mentioned referred to the first payment on the mortgage notes to be given on that building; that the terms in Exhibit "B" referred to the understanding in Exhibit "A." Plaintiff then introduced in evidence a warranty deed from the Rollice Realty Company to himself. It is in the usual form of a warranty deed, dated May 15, 1908, made by the Rollice Realty Company, though its president, Kilgen, the defendant, party of the first part, to John C. Meyers, the plaintiff, as party of the second part; acknowledges the payment of $10 by the party of the second part to the party of the first part for the lot described in the agreement, Exhibit "A," and states that the warranty is subject to a deed of trust thereon for $10,000, dated February 20, 1908. Plaintiff then introduced a deed of trust which was in the usual form, dated May 15, 1908, and is between him, as party of the first part, R. F. Kilgen, as party of the second part, and the Rollice Realty Company, as party of the third part; acknowledges the payment of one dollar by the party of the second part to the party of the first part for the property before described, subject to the deed of trust mentioned in the warranty deed referred to, a deed of trust being executed for part payment of the purchase money on the property by Meyers in the sum of $14,000, in evidence of which it is set out that Meyers had executed to the party of the third part eight promissory notes of even date, to-wit, two notes for $1000 each, six notes for $2000 each. It was admitted that the $5000 mentioned in the deed of trust had been paid to and received by the Rollice Realty Company on account of payments provided for by the deed of trust, that is to say the notes as they came due were taken up and that that was done prior to the institution of the suit. Plaintiff was then asked to state what, if any, conversation he had with Mr. Kilgen with regard to carrying out the contract after he entered into the agreement evidenced by Exhibit "A." The witness testified that after December 10, 1907, he got the keys to the property, organized a company, went ahead with the proposition, finally bought the property himself and then sold it to the company he had organized. Asked if he had had any conversation with Mr. Kilgen after the extension to December 10, 1907, had been made, he stated that he had conversations at various times with Mr. Kilgen in his office; that these conversations were after the notation on the agreement of its extension to December 10th. In these conversations Mr. Kilgen had simply told plaintiff to go ahead with the deal, to "go ahead with the business; organize your company, and I am with you." The other conversations plaintiff stated related to the changes in the building. Plaintiff had the keys. Kilgen saw the changes he made, by which he had converted the building from an ice rink into a natatorium. Plaintiff testified that he and Kilgen spoke of the details of the contract and that Kilgen had said, "go ahead with the business." Plaintiff organized a company to take over the property about the 10th of January, 1098, and he conveyed the property to this corporation. These transactions were evidenced by the deeds above recited. Plaintiff being asked to state whether he and Kilgen had had any conversations in regard to the variance of the contract or a possible change in it, he answered that they had and that they had had several conversations and they amounted simply to this: "That times were hard, and the money question was coming up, and I should continue and go on, and there would...