Morgan v. Keller

• Decision Date: 31 January 1906
• Citation: 194 Mo. 663,92 S.W. 75
• Parties: MORGAN et al. v. KELLER et al.
• Court: Missouri Supreme Court

92 S.W. 75

194 Mo. 663

MORGAN et al. v. KELLER et al.

Supreme Court of Missouri, Division No. 2.

January 31, 1906.

1. APPEAL—PRESENTATION OF QUESTIONS IN TRIAL COURT — MOTION FOR NEW TRIAL.

A motion to set aside the verdict is equivalent to a motion for a new trial for the purpose of presenting questions for review, especially where it is so treated by the trial court.

2. CONTRACTS—JOINT OR SEVERAL CONTRACT— EVIDENCE.

Though in an action against certain members of a brewing company on a contract for the employment of brokers, several contracts of the different defendants cannot be shown, the admission of evidence of conversations of each of the defendants separately with the plaintiffs was not error where the conversations were connected with, or had reference to, conversations with other defendants, and on one occasion they employed plaintiffs while together.

3. BROKERS—COMPENSATION—RIGHT TO COMMISSION.

In an action for brokers' commissions, an instruction assuming a sale by the brokers was not error where the evidence showed that they produced purchasers able and willing to buy on terms satisfactory to the employers of the brokers, whether the sale was actually consummated or not.

4. SAME—ACTIONS—INSTRUCTION.

In an action for brokers' commissions against stockholders of a brewing company for sale of its property, where the evidence showed that the debts of the company were about $30,000, that the purchasers assumed this indebtedness, relieving defendants from any liability thereon, and that by the written contract of sale the purchasers relieved defendants of all personal liability on the obligations of the company, not to exceed $30,000, there was no conflict between an instruction authorizing a recovery of 10 per cent. of the debts of the company from which defendants were to be relieved as sureties, and one authorizing a recovery of 10 per cent. of the debts of every kind of the company.

5. SAME—KIND OF SALE.

Where no time was fixed within which brokers were to sell property, and they negotiated a sale which was consummated by their employers, the employers cannot claim that the sale was not made within a reasonable time.

6. SAME—AMOUNT OF RECOVERY.

Brokers negotiating a sale, on terms accepted by their employers, are entitled to recover their commissions on the entire price, whether it is all paid or not, they not being guarantors of deferred payments.

7. APPEAL—REVIEW—VERDICT.

Where a verdict is supported by some substantial evidence, it will not be interfered with on appeal.

Appeal from Circuit Court, Jasper County; Hugh Dabbs, Judge.

Action by J. J. Morgan and others against G. W. Keller and another. From a judgment in favor of plaintiffs, defendants appeal. Affirmed.

Thomas Dolan, for appellants. C. V. Buckley, R. G. Blair, W. Jones, and Geo. H. Hubbert, for respondents.

BURGESS, P. J.

This is an action by J. J. Morgan and Henrietta Von Ronzelen, who sue under the firm name and style of J. J. Morgan & Co., as partners, and their co-plaintiff, W. H. Gault. At the trial, after plaintiffs' evidence was in, the cause was dismissed as to L. P. Cunningham, who was an original party. The petition alleges: That in the month of December, 1900, plaintiffs were employed by the defendants, George W. Keller, Nicholas Zentner, and L. P. Cunningham, who owned or were the principal stockholders in the Joplin Brewing Company, to sell certain property of the said Joplin Brewing Company, that is, all the property and assets thereof described as follows: Certain real estate located on Main street and Virginia avenue, in Joplin, Jasper county, Mo., and its brewery, ice plant, machinery, saloons, and personal property used in and about the business of said brewing company, and that defendants agreed to pay plaintiffs the sum of 10 per cent. of the price which said property should be sold at to any purchaser or purchasers obtained or procured by the plaintiffs. That the plaintiffs thereupon undertook the sale of said property on behalf of defendants, and through their efforts, exertions, and instrumentality, procured as purchasers for said property R. L. Dennison, C. A. Dall, and F. W. Keasbey, and that on the ____ day of March, 1902, said property was sold by the defendants to said purchasers. That said sale was made by the transfer of the capital stock held and owned by the defendants and others in said Joplin Brewing Company, and said property and assets were sold by transferring all the said capital stock of the defendants and other stockholders to the purchasers thus procured by the plaintiffs, at and for the sum of $87,500. That said sale was made to the parties procured and produced therefor by the efforts of plaintiffs. That the defendants individually employed and agreed to pay to the plaintiffs 10 per cent. on whatever sum said Joplin Brewing Company should be sold at by defendants to such purchaser or purchasers as should be produced and procured by the plaintiffs, and that upon such sale the defendants became indebted to the plaintiffs in said sum. That plaintiffs have frequently demanded of the defendants that they pay the same to plaintiffs, but that they refused to pay said amount or any other sum. Wherefore, plaintiffs ask judgment for the sum of $8,750. Each one of the defendants answered separately and denied each and all of the allegations in the petition contained.

The facts, briefly stated, are about as follows: Plaintiffs Morgan and Von Ronzelen were, at the time of the making of said sale, partners and brokers in the real estate business at Joplin. Plaintiff Gault was also engaged to some extent in the same line of business and his services were engaged in the performance of the contract made by his co-plaintiffs for the sale of said brewery and other property connected therewith. In the latter part of November, or the first part of December, 1900, the defendants employed plaintiff Morgan to sell the brewery plant of the Joplin Brewing Company, as before stated, agreeing to pay him a commission of 10 per cent. of whatever sum it should be sold for by him, Morgan, it being understood that he should not ask more than $100,000 for the entire property, the reason being that many other parties had had the property for sale, but had failed to sell it, as defendants stated, because they placed the price too high. Morgan's firm took the matter up and communicated personally and by correspondence with prospective purchasers, sending out letters, prospectuses, etc., over the country to parties whom they thought might be interested in such property. Among others approached by Morgan on the subject was Mr. Dinkelbihler of Joplin, and also, through his partner, Mrs. Von Ronzelen, Mr. Busch of St. Louis. In the summer of 1901 he interested Mr. R. L. Dennison in the project. The latter went East where they saw F. W. Keasbey and C. A. Dall, whom he brought to Joplin to look over the property. They were pleased with it; took an option thereon, which was renewed until the 10th day of March, 1902, at which time they had paid on the property or options which they had obtained the sum of $700. On the said 10th day of March, they concluded the deal, taking over all the property, assets, book accounts, bills receivable, and capital stock. For this they paid, as the purchase price of the entire property, to defendant Keller, $3,500; to Zentner, $5,000; to L. P. Cunningham, $2,500; to George Muennig, $500; to Seidenstricker, $100; making $11,600 in cash; and they assumed $30,000 of the company's debts, or rather, agreed to relieve defendants of their individual liability to that amount of the company debts. In addition, they gave Zentner, $20,000, par value, in stock in the Middle West Brewing Company, which they had organized; to Keller, $14,000 and to Cunningham $8,000 in like stock; making, in all, $83,600. They took charge of the brewery and began operating it. About the 25th day of March, 1902, some 15 days after the completion of the sale, Morgan asked the defendants for a settlement of his commissions. They refused. The trial of the cause took place before the court and jury, on January 21, 1903, and resulted in a verdict for the plaintiffs in the sum of $8,468. Each of the defendants, Zentner and Keller, filed separate motions for a new trial and in arrest, which being overruled, they saved their exceptions and by appeal bring the cause to this court for review. Other facts in evidence will be stated, where thought necessary, in the course of the opinion.

The court, over the objections and exceptions of defendants, instructed the jury as follows: "(1) The court instructs the jury that if you find from the evidence that the defendants employed the plaintiffs to sell for them the Joplin Brewery Company property, and agreed to pay them 10 per cent. on whatever sum it sold for, and the plaintiffs procured F. W. Keasbey and other parties to whom said property was sold, either direct or by transfer of the capital stock of the stockholders of said company, then you should find the issues in favor of the plaintiffs, and assess their damages at 10 per cent. of whatever sum said stock was sold for, together with 6 per cent. interest thereon from the time demand was made, if any demand was made, and if not, then from the time of the institution of this suit. (2) The court instructs the jury that it is admitted by the pleadings that at the time so alleged in the petition the plaintiffs, J. J. Morgan and Henrietta Von Ronzelen, were partners; and if you find from the evidence that it was agreed between the plaintiffs that plaintiff Gault should have a portion of the compensation, and you should further find from the evidence that the defendants Keller and Zentner employed the plaintiff J. J. Morgan to negotiate a sale of the brewery property for them, or to find a purchaser therefor, and agreed to pay him 10 per cent. of whatever sum it sold for, and you should further find from the evidence that...