Milbourn v. Bowman Bros. Realty Co.

• Decision Date: 02 October 1928
• Docket Number: No. 20326.,20326.
• Parties: MILBOURN v. BOWMAN BROS. REALTY CO.
• Court: Missouri Court of Appeals

9 S.W.2d 664

MILBOURN v. BOWMAN BROS. REALTY CO.

No. 20326.

St. Louis Court of Appeals. Missouri.

October 2, 1928.

Rehearing Denied October 19, 1928.

Appeal from Circuit Court, Cape Girardeau County; Frank Kelly, Judge.

"Not to be officially published."

Action by Della Milbourn against the Bowman Bros. Realty Company. Judgment for plaintiff, and defendant appeals. Affirmed.

B. Hugh Smith and L. L. Bowman, both of Cape Girardeau, for appellant.

J. Grant Frye, of Cape Girardeau, for respondent.

SUTTON, C.

In this action plaintiff seeks to recover of defendant the sum of $150. Plaintiff in her petition alleges that on October 18, 1926, she and one Rozena Perry entered into an agreement in writing for the sale by plaintiff to said Rozena Perry of certain real estate situate in Cape Girardeau, Mo., for the sum of $300; that said agreement provided that the deed to said real estate and the sum of $300 should be deposited with defendant until plaintiff and said Rozena Perry should perform the conditions and covenants in said agreement contained; that upon the performance of said conditions and covenants the defendant was by the terms of said agreement to deliver to said Rozena Perry the said deed and to the plaintiff the said sum of $300; that defendant was fully advised as to the terms of said agreement, and consented and agreed thereto, and received and accepted the deed and the sum of $300, pursuant to the terms of said agreement; that plaintiff and said Rozena Perry duly performed all the conditions and covenants on their part to be performed under said agreement; that thereupon defendant delivered said deed to said Rozena Perry, and delivered to plaintiff $150 of the said $300 so deposited with defendant, but has ever refused to deliver to plaintiff the balance of said sum of $300, amounting to $150, for which amount plaintiff prays judgment against defendant.

Defendant in its answer admits the execution of the escrow agreement as set forth in plaintiff's petition, admits the payment to it of the sum of $300 by Rozena Perry, but denies each and every other allegation in plaintiff's petition contained, and by way of affirmative defense alleges that on or about October 1, 1926, plaintiff entered into an agreement with defendant whereby she employed and authorized defendant to dispose of and sell for her the real estate mentioned in plaintiff's petition, and agreed to pay defendant for its services in making the sale of said real estate one-half of all money that could be obtained for said property over and above all incumbrances and liens that might be against said real estate; that defendant, acting under and by virtue of said agreement, sold plaintiff's equity in said real estate to Rozena Perry for the sum of $300; that thereupon plaintiff became indebted to defendant in the sum of $150; that the $300 mentioned in plaintiff's petition is the same $300 received for plaintiff's equity in said real estate; that defendant deducted from the said $300 the sum of $150, and gave to plaintiff its receipt in full for $150 to it for services rendered in selling said real estate.

The trial, with a jury, resulted in a verdict and judgment in favor of plaintiff for the sum of $150, and defendant appeals.

The plaintiff testified that she sold her property to Rozena Perry; that J. C. Zimmerman was her adviser about the sale of the property; that he brought her abstract of title down to date and prepared the escrow agreement and deed for the sale and conveyance of the property; that she owed and was willing to pay him what his services were reasonably worth; that, when she asked him what he was going to charge her for his services, he replied that he would charge her whatever his services were reasonably worth, and that she could pay him any time she got ready.

J. C. Zimmerman, produced by defendant, testified that he was connected with Bowman Bros. Realty Company, and that his connections with that company began October 1, 1926; that he knew the plaintiff since about the 1st of May, 1926; that before he became connected with Bowman Bros. Realty Company he was connected with the Union Realty Company; that he transacted some business with the plaintiff when he was with the Union Realty Company, and had some business with her after he went with Bowman Bros. Realty Company; that this business was to try to settle a deal or sell a house to Rozena Perry; that he also had a matter up with her, known as the Jones deal; that he was simply a salesman for Bowman Bros. Realty Company; that he had a few prospects on hand, and took them with him, when he went to Bowman Bros. Realty Company; that plaintiff was one of these prospects; that the business he had with her was one of the unfinished transactions; that, after he went to Bowman Bros. Realty Company, L. L. Bowman, president of that company, was called in, and that the plaintiff agreed with him that, if he could sell her equity in her property to Rozena Perry for $300, she would allow him one-half of that amount for commission. Mr. Bowman corroborated Mr. Zimmerman's testimony relative to this agreement. Plaintiff denied that any such agreement was made.

After the deal with Mrs. Perry was consummated and the deed to plaintiff's property was delivered to her, the plaintiff called at defendant's office and asked for the $300 deposited with defendant as the purchase price of the property. At that time she was offered a check for $150. There was no one in the office at the time but the office girl. Plaintiff refused to accept the check. Later, in a telephone conversation with Mr. Bowman, she demanded payment to her of the $300. Thereupon a check for $150 was sent to her by a messenger boy along with the following letter:

                                      "October 26, 1926
                

"Mrs. Della Milbourn, City—Dear Madam: The total charges for handling, drawing all papers, taking acknowledgments, etc., in the closing of the deal with Mrs. Rozena Perry, including payment of abstract on the Perry deal, and also drawing up the papers and looking after your interest in the Jones deal is $150.00, which includes all charges on both deals.

"We hereby acknowledge receipt for this amount on this the 30th day of October, 1926.

                             "Bowman Bros. Realty Co
                                  "By L. L. Bowman
                                     "J. C. Zimmerman."
                

Plaintiff accepted the check and cashed it, but protested that she was being treated badly and had not received what was due her. She protested that she did not owe the defendant anything. She told Mr. Zimmerman she was willing to pay him $50, and would make him her note for that amount due in a short time, that she wanted to use the $300 at that time in buying another home.

The court of its own motion gave to the jury instruction No. 1, as follows:

"The court instructs the jury that, by the terms of the contract between Mrs. Perry and plaintiff, Mrs. Perry was to deposit $300 with the defendant, and plaintiff was to deposit a deed to the property mentioned in the evidence, and defendant was to deliver the deed to Mrs. Perry and the $300 to plaintiff when other terms were completed, and defendant notified of such terms being completed. Now, if you believe and find Mrs. Perry paid defendant said sum, and that defendant has paid to plaintiff only $150 of said sum, you will find a verdict for plaintiff for said sum, unless you believe and find that before the sale to Mrs. Perry plaintiff agreed to pay defendant one-half of all defendant could sell the property for over the indebtedness on the property, and defendant sold it to Mrs. Perry, and, if you find there was such an agreement, you will find a verdict for defendant."

The court at the request of plaintiff gave to the jury instruction No. 2, as follows:

"The court instructs the jury that the burden of proof that plaintiff had an agreement with defendant to sell her property for her is on defendant. By burden of proof is meant defendant must prove this by a preponderance of the evidence."

The court at the request of defendant gave to the jury instruction No. 3, as follows:

"The court instructs the jury that, if you find from the evidence that the plaintiff employed the defendant to sell plaintiff's property, and that plaintiff agreed to pay defendant for its services in case a sale was made one-half of all that it could obtain in a sale of said property over and above the incumbrances thereon and that such a sale was...