Moffett v. Butler Mfg. Co.

• Decision Date: 17 February 1932
• Docket Number: No. 29716.,29716.
• Citation: 46 S.W.2d 869
• Parties: MOFFETT v. BUTLER MFG. CO.
• Court: Missouri Supreme Court

46 S.W.2d 869

MOFFETT v. BUTLER MFG. CO.

No. 29716.

Supreme Court of Missouri, Division No. 2.

February 17, 1932.

Appeal from Circuit Court, Jackson County; Thomas J. Seehorn, Judge.

Suit by T. I. Moffett against the Butler Manufacturing Company. Judgment for the plaintiff, and the defendant appeals.

Affirmed.

Harris & Koontz, of Kansas City, for appellant.

Cowgill & Popham, of Kansas City, for respondent.

COOLEY, C.

Plaintiff, an industrial broker, brought this suit against the defendant, a large manufacturing concern in Kansas City, to recover a broker's commission. He obtained a verdict for $8,697.50, plus $1,261.14 interest, aggregating $9,958.64, for which amount judgment was entered. After unsuccessful motions for new trial and in arrest the defendant appealed. This was the second trial. On the first trial the plaintiff had obtained verdict for the same principal sum, $8,697.50, without interest. The trial court had set that verdict aside as having been against the weight of the evidence and there had been no appeal from that ruling.

Plaintiff's petition, after stating that he was engaged in business as a general industrial broker and certain matters of inducement relative to his ability to influence the placing of the business in question, alleged in substance that the Gleaner Manufacturing Company, a large concern engaged in selling and handling threshers and other farm machinery, was "in the market for having manufactured a large quantity of gleaners for wheat threshers"; that plaintiff was in position to control said prospective business and so advised defendant; that about May, 1924, defendant "commissioned and employed and directed plaintiff to make efforts to and to procure for defendant said prospective business," and agreed to pay plaintiff for his services "a reasonable brokerage and commission in the amount of ten per cent of the money received by defendant from said customer, the Gleaner interests, for manufacturing and furnishing said machines and machinery to said interests up to the amount of two thousand machines"; that plaintiff, pursuant to his employment, used his skill and influence and brought the Gleaner Company and defendant together, with the result that after negotiations between the two companies a contract was entered into between them pursuant to which the defendant manufactured for the Gleaner Company a "large volume" of machines for which it received from said Gleaner Company the total sum of $86,750 (see "Note," infra); that plaintiff was the procuring cause of defendant's getting the business; and that "said sales and collections resulted from the employment of plaintiff and the connection of plaintiff with defendant and the influence and acts of plaintiff."

There were further allegations to the effect that 10 per cent. was the customary and reasonable commission which plaintiff was entitled to recover, but at the trial the court, upon defendant's objections, excluded evidence offered by plaintiff to prove such allegations, requiring plaintiff to prove a specific contract for 10 per cent. The sufficiency of the petition was not challenged. The answer was a general denial.

[Note. — The evidence showed a total sum of $86,975 paid to defendant by the Gleaner Company, and the verdict was for 10 per cent. of that sum. No point is made on this appeal nor in defendant's motions for new trial and in arrest because of the discrepancy, and we shall not further notice it.]

Plaintiff's evidence tended to show in substance the following: In the spring of 1924 he learned from Mr. Hale, chairman of the board of directors of the Gleaner Company, that that company would be interested in finding a manufacturing concern that could manufacture machines for it more cheaply than it could itself and with the view of finding such manufacturer plaintiff investigated several. About May, 1924, he went for that purpose to the defendant company, where he met Don J. Butler, defendant's sales manager. He told Butler he was an industrial broker and made known his mission but without then disclosing the name of his customer. He had with him pictures of the desired machine which he showed to Butler. The latter was interested and expressed the belief that his company could make the machines, but referred plaintiff for definite information on that point to Mr. Norquist, defendant's vice president and plant manager. Going to the factory, plaintiff was referred to a Mr. Rufi, Norquist's assistant, by whom he was shown the plant and facilities of defendant and assured that defendant was equipped to make the machines. He told Rufi, as he had Butler, his business there but without disclosing the name of his customer.

A day or so later plaintiff again called upon Butler, and informed him that Mr. Rufi had assured him that defendant could make the machines, which from his own investigation of the plant he thought was true. Butler wanted the business for his company and agreed with plaintiff that if it was secured defendant would pay plaintiff "the ten per cent commission on the machines they made up to as many as two thousand"; that is, 10 per cent. of the amount defendant should receive from plaintiff's customer for the machines. After that agreement was reached plaintiff for the first time divulged the name of his customer; "they never would have known until that (the commission) was settled." The evidence all shows that until the information was disclosed to them by plaintiff none of defendant's officers had any knowledge or information of the Gleaner Company as a possible customer of defendant.

Having arranged the matter of commission, plaintiff returned to Mr. Hale to whom he reported fully as to defendant's facilities for manufacturing the machines and recommended that the Gleaner Company employ defendant to make them. It was arranged that plaintiff should take a representative of the Gleaner Company to the defendant company, but that could not be done "until in the fall," and in the meantime no further progress was made. Some time early in the fall of that year plaintiff took Mr. Baldwin, superintendent of the Gleaner Company's factory, to defendant's plant. Baldwin took with him photographs, blueprints, and specifications of the machine desired, which were "gone over" in defendant's office by Baldwin, Rufi, and plaintiff. Later, plaintiff also took the president of the Gleaner Company to defendant's plant.

It appears that after plaintiff had thus brought the two companies together they carried on their negotiations practically without his assistance, although he offered to assist. He got no information from defendant and but little and vague information from the Gleaner Company as to the progress being made in the negotiations, but progress was being made. Several weeks after taking Baldwin there, plaintiff, on a visit to defendant's factory, discovered there in process of construction a model of the machine to be manufactured. About three weeks' work had been done on it. Mr. Baldwin was superintending its construction. Don Butler came in while plaintiff was there and appeared embarrassed when he noticed that plaintiff had seen the model and remarked that he did not know it was being made.

Under date of January 2, 1925, a contract was executed between the Gleaner Company and defendant for the manufacture by the latter for the former of one hundred machines, and in February or March two similar contracts for fifty machines each, making a total of two hundred machines manufactured. The Gleaner Company paid the defendant under those contracts the total sum of $86,975 for the two hundred machines.

Defendant's contention was, and Mr. Butler's testimony tended to show, that the only agreement he made with plaintiff relative to commission was that, if plaintiff was in position to place the business with defendant, defendant would determine and inform him of the price net to it that defendant would require and would add to that price whatever sum plaintiff wished as his commission and could induce his customer to pay; such additional sum to be included in the total price to be paid by said customer and plaintiff to procure the customer's agreement to such total price. Butler denied making the agreement testified to by plaintiff.

While the conflict in the testimony was for the jury to determine, which it did adversely to defendant, it may be noted that defendant offered no evidence tending to show that it ever submitted to plaintiff a price or gave him any opportunity to have his commission fixed on the theory of its above-mentioned contention. So far as concerns any information received from defendant, plaintiff was kept in the dark as to what was being done from the time he disclosed to defendant the identity of the customer and brought the Gleaner Company's officials to defendant until after defendant had made its contract with the Gleaner Company.

Plaintiff's evidence showed, and defendant virtually conceded, Butler's authority to make for defendant the commission agreement with plaintiff.

I. We have sketched the evidence because of plaintiff's contention that its demurrer thereto should have been sustained.

Defendant argues that there was not sufficient evidence to justify a finding that plaintiff was the procuring cause of its obtaining the business, but to this we do not agree. We think it clear that the evidence, a mere outline of which we have given, justified submission of that issue and sustains the verdict. Complaint is made that plaintiff's testimony at this trial contradicted testimony he had given at the first trial in a deposition. We find no substantial contradictions as to matters material to the result. There are more material contradictions between the testimony of Mr. Butler given in court and that given by him in a deposition. Moreover, that was a question for the jury and two juries found for the plaintiff.

It is claimed also that plaintiff failed to prove that he ...