Minter v. Rothschild

• Decision Date: 02 July 1915
• Docket Number: No. 11611.,11611.
• Citation: 186 S.W. 753
• Parties: MINTER v. ROTHSCHILD.
• Court: Missouri Court of Appeals

186 S.W. 753

MINTER v. ROTHSCHILD.

No. 11611.

Kansas City Court of Appeals. Missouri.

July 2, 1915.

On Rehearing, May 22, 1916.

Appeal from Circuit Court, Jackson County; Daniel E. Bird, Judge.

"Not to be officially published."

Action by Charles D. Minter against Jacob Rothschild. Judgment for plaintiff, and, from the judgment and order denying new trial, defendant appeals. Reversed and remanded.

J. A. Harzfeld and W. B. Dickinson, both of Kansas City, for appellant. Stewart Taylor, of Kansas City, for respondent.

JOHNSON, J.

This is an action by a broker to recover a commission for the sale of a wholesale hat business owned and conducted by defendant in Kansas City. Plaintiff alleges he was employed by defendant, who agreed to pay him a commission of 2½ per cent., and that he was the procuring cause of the sale of the business to Barton Bros., at the price of $51,900. The answer is a general denial. The verdict of the jury was for plaintiff in the sum of $1,250, and, after unsuccessfully moving for a new trial, defendant appealed. The only questions raised for our determination relate to rulings on evidence.

Defendant was engaged in the wholesale hat business in Kansas City, and also owned and was operating retail stores in Cawker City and Osborne, Kan. Needing more capital for his wholesale business, he employed plaintiff, a broker at Kansas City, to find a purchaser for one of his retail stores; but plaintiff was unsuccessful in this employment. About this time Barton Bros., wholesale shoe merchants, in Kansas City, sold their business and decided to embark in the wholesale hat business. There was another established hat jobber in Kansas City besides defendant, and it seems to have been agreed by every one familiar with the market that a third house would be superfluous and might result in disastrous competition. There is evidence tending to show that defendant was not strong financially and was not in a condition to stand the competition he would be compelled to meet if a strong new competitor should enter and overcrowd the field. It appears that at first Barton Bros. were more anxious to buy defendant's business and use it as the nucleus of their proposed enterprise than defendant was to sell. At any rate, the first advance was made by them. They sent a broker named Beedle to defendant, who succeeded, so he testified, in obtaining a proposal from defendant to sell; but this negotiation proved abortive. The witness testified:

"Q. Did you yet a proposition from Mr. Rothschild to Mr. Barton? A. Yes, sir. Q. What was the proposition? To sell his stock to them? A. Yes, sir. Q. To sell out entirely? A. Yes. Q. What was the general nature of the proposition? Counsel for Plaintiff: As that did not result in anything, we object to that. The Court: Objection sustained. (Defendant excepted to the ruling of the court.) Q. Were they (Barton Bros.) ready and willing to buy? Counsel for Plaintiff: That is immaterial. The Court: Objection sustained. (Defendant excepted.)"

The next move, also, came from Barton Bros. An eastern manufacturer named Weber, an old friend and creditor of defendant, came to Kansas City on a business visit, and at the solicitation of Barton Bros. became active in trying to negotiate a sale of defendant's business to them. He induced defendant to make an offer through him to Barton Bros., but the court would not allow the witnesses to state what that offer was, or to give particulars of subsequent negotiations. It appears that Barton Bros. made a counter proposition through Weber which defendant did not accept. Weber went from Kansas City to St. Louis and wrote defendant a letter urging him to accept the offer, saying:

"It is the only way you can save yourself. You have the wrong idea about bonus. By all means take the Barton offer, otherwise you will lose a lot of money. You cannot go on the way you are doing, and should some of your creditors press their claims, and they surely will, then the end of your business will come and it will be very expensive. Nothing to do but to sell out on such a good offer. Let me hear from you."

Weber met a Mr. Biggs, another friend and creditor of defendant in St. Louis, and told him of the state of the negotiations for the sale of defendant's business. Thereupon Biggs wrote defendant to sell by all means.

"The fact is," he wrote, "that your business relations with the people you are and have been doing business with East are more than unsatisfactory, your promises as to the capital you were to put into the business have not been kept and you are in a very dangerous position; with the large amount of past due accounts standing open, bankruptcy proceedings in the near future stare you in the face, for creditors will not continue to wait on you for payment and certainly will not any longer go on supplying you with merchandise.

"I understand from Mr. Weber that you have a chance to sell out clean. If you lose this opportunity I say again that bankruptcy is inevitable. The offer as explained to me by Mr. Weber is the best I have ever heard of in the hat trade, and you had better close with it before it is withdrawn.

"Remember, that in this matter your whole estate, your jobbing business, your retail stores, and your land interest, as well as your whole future, is involved."

Weber went from St. Louis to Chicago, where he wrote the following letter to defendant:

"Your telegram reached me in Chicago yesterday, and I wired you last night that your payment as promised would be satisfactory and that I had ordered your samples shipped at once. Same will reach you the latter part of next week.

"As Mr. Barton has agreed to wait until next Monday, I consider that it will give you sufficient time to think over the deal in every way and especially as your brother is going to call on you. It is useless for me to go into details of this matter any more, as I have expressed my opinion and of course hereafter you must act for yourself. I firmly believe that unless you can get considerable more capital in your business you should sell out to Barton; otherwise, should you continue and not have sufficient means to conduct your business it will be one continual handicap, as I have explained to you before, your credit in New York is very much strained. Why should you undertake such a big load when you can get out of the business so easily? And may be later on sustain a great loss. What I am saying to you and have said before is said with the kindest of feelings. As you know, I was instrumental in organizing your house and have many friends among your force, and I extend to all of you my very best wishes for the future and again say that unless you can see your way clear to continue in business with sufficient capital, sell out.

"I finished my work in St. Louis and will go from here to New York City. Reach there on Monday. I would thank you very much if you would keep me posted as to the outcome of the pending deal and if there is anything that I can do for you it will be a pleasure to hear from you."

The court sustained plaintiff's objection to the introduction of these letters, which were not potent enough to induce defendant to close a sale to Barton Bros. Defendant, at this time, seems to have been imbued with the idea that if he could find a partner with money it would be better to continue the business than to sell. Such was the condition of affairs when plaintiff became interested in trying to effect a sale of the business to Barton Bros. One day plaintiff, according to his testimony, visited defendant at the latter's office, and, in the course of the conversation which ensued, said: "I understand that the Barton Bros. want to go into the hat business. Let's sell this stock to them, because three hat houses will be too many." Defendant said: "I don't think they want to buy the stock." Plaintiff replied: "I understand they will buy it; they would be foolish if they did not." Defendant answered: "You see them and see what they will do." They talked of the commissions, and plaintiff said he would charge 2½ per cent. "right straight through...