Murphy v. Knights of Columbus Building Company

• Decision Date: 04 March 1911
• Citation: 135 S.W. 446,155 Mo.App. 649
• Parties: THOMAS W. MURPHY et al., Appellants, v. KNIGHTS OF COLUMBUS BUILDING COMPANY, Respondent
• Court: Missouri Court of Appeals

135 S.W. 446

155 Mo.App. 649

THOMAS W. MURPHY et al., Appellants, v. KNIGHTS OF COLUMBUS BUILDING COMPANY, Respondent

Court of Appeals of Missouri, St. Louis

March 4, 1911

Appeal from St. Louis City Circuit Court.--Hon. J. Hugo Grimm Judge.

REVERSED AND REMANDED.

STATEMENT.--Plaintiffs who are partners engaged in the real estate business in the city of St. Louis, sue defendant, a real estate holding corporation, for $ 950, the alleged reasonable value of their services, rendered at the special instance and request of defendant, in discovering, procuring and submitting for defendant's approval, a suitable real estate site, which the defendant approved and purchased for $ 38,000.

The answer was a general denial. The trial being before a jury the trial court directed a verdict for defendant at the close of plaintiffs' evidence, in consequence of which the plaintiffs took a non-suit with leave to move to set it aside, and afterwards, having so moved, and the court having overruled their motion, the plaintiffs have appealed to this court. The evidence disclosed the following:

Defendant being desirous of purchasing a building site, its board of directors appointed a "real estate committee" and made James M. Rohan chairman of it, with instructions according to his testimony, "to go out and find an available site" . . . "to go out and ascertain different locations and submit them to the board." Rohan testified that thereupon he saw a great many real estate men and solicited and received offerings from them, which he submitted to the board. Plaintiffs did not know of these promiscuous dealings. A few days prior to March 27, 1907, plaintiff, Thomas W. Murphy, received a telephone message from Ferdinand Meyer, one of defendant's directors, asking Murphy to give him a description and price on the northwest corner of Grand and Laclede avenues. About a year before this, the plaintiffs, without any employment thereto, had submitted some sites for the consideration of the defendant. Murphy got the description and price asked for by Meyer from the agent for the owner of the property and sent them to Meyer by letter. Meyer turned the letter over to Rohan, and on March 27, 1907, Rohan called with it at plaintiffs' business office. Rohan testified, "I went up to inform him that I was chairman of the real estate committee and that if he had any further communications to present them to me. And we talked about different sites and I told him that we would want a site, and about the neighborhood," etc. Murphy testified, "when Mr. Rohan came to the office he told me he was chairman of the committee on sites of the Knights of Columbus Building Company. He said that several sites were submitted on Grand avenue." He said, "See what you can get west of Grand avenue." Murphy then suggested, "Why don't you buy a building that you could use for temporary use at the time being?" And Rohan answered, "Why, see what you can get. I want to have something to submit at the next meeting." The plaintiffs' bookkeeper called Murphy's attention to the Mahler Hall property at 3545 Olive street, and he being acquainted with the owner, made an appointment for Murphy to look through the building. Murphy went to the building, met the owner and examined the building. He then wrote a letter on plaintiffs' firm letterhead, to Mr. Rohan, as follows:

"St. Louis, Mo., March 29th, 1907.

"Mr. James M. Rohan,

Dear Sir: Since our verbal conversation I have looked up some sites for the 'Knights of Columbus' home; considering the financial condition, one of these propositions is very desirable for at least a temporary home.

"The property I am going to refer to will, in my judgment, greatly increase in value and could be used for meetings, without the expenditure of much money.

"The following is a description of the property:

Mahler's Hall, 3545 Olive Street.

Three-story brick building containing all conveniences for lodge purposes; two halls.

First floor: Reception hall, smoking room, dining-hall and kitchen.

Second floor: Main hall 40x75 with balcony around three sides of hall; ladies' cloakroom with toilet; gents' coat-room with toilet; office.

Third floor: Six living rooms and bath. This may at a very small expense be changed into a small hall.

The building is heated by "Home Comfort" hot air furnace; also is equipped with fire escapes.

Lot 50x147. Price, excluding elec. fixtures, draperies and furnishings, $ 40,000. (The letter then describes three other locations.) "If the board should desire to take up any of these propositions, we would be very glad to hear from them. I beg to remain,

Yours very truly,

(Signed) THOMAS W. MURPHY."

He delivered this letter to Mr. Rohan in person on the day of its date, giving him also a photograph of the Mahler's Hall Building. This was the first time the Mahler's Hall property had been called to the attention of the defendant. When handed the letter and photograph, Rohan said, "this appeals to me." . . . "I will submit this at the next meeting,--bring it up at the board meeting." Rohan testified that he did submit and read Murphy's letter to the board of directors of the defendant at its next meeting and that the board rejected the properties described therein. Murphy called again and Rohan told him that the board did not think favorably of it but that he would bring it up again. Rohan then discussed the matter with different members of the board, and upon Murphy calling again told him that he could not get them interested. Murphy then suggested the advisability of Rohan getting the board to go out and see the property and Rohan said he would try to do so. Sometime afterwards the board did go out in a body to see the property and authorized the purchase of it. Rohan brought one Levy, the agent of the owner, to the defendant's president and they closed the deal and the defendant acquired the property at $ 38,000. Mr. Rohan testified, however, that it was not on plaintiffs' invitation they had gone out; that they went out subsequent to that. That he and Murphy had "kind of dropped the matter for a while," and Murphy had submitted other sites. That a Mr. McDonald had again submitted the same property and the board had then purchased it. After Murphy heard the building was sold he called on Rohan and asked him if they had purchased Mahler's Hall. Rohan said "yes." Murphy said, "How about our commission in that matter?" Rohn said, "Why I thought McDonald brought that in." Murphy said, "You are mistaken about it." Murphy called Rohan's attention to some of the things that had occurred when he submitted the property. That was on Saturday. Rohan remarked, "I don't care who gets the commission." Murphy said, "Think it over, Mr. Rohan, and you will remember all about it." Murphy called Monday morning and Rohan said, "It has all come back to me. You are the one that submitted it." Murphy said, "Will you notify Mr. Leahy to that effect?" And he said he would. On August 21, 1907, Murphy wrote to the president of defendant company expressing his surprise at the information that his claim for commission had been acted on and ignored at the last meeting of the board. He said that he had given the matter his personal attention and was satisfied that if the board was familiar with plaintiffs' connection with the deal they would think differently. He asked for an opportunity to establish their claim. On September 3, 1907, the president answered that he would present the letter to the board and advise of their action. On September 7, 1907, the defendant's secretary wrote that Murphy's letter to the president had been read to the board and the board had instructed that Murphy be notified that he would have the privilege of appearing before the board at its next meeting. On October 5, 1907, the defendant's secretary wrote to Murphy advising him of the time and place of the next board meeting and stating, "If you care to come up they will take up the matter we had under discussion, concerning the purchase of property at 3845 Olive st." In response to this letter Murphy appeared before the board and testified to what transpired as follows:

"Q. Now, what transpired in that meeting of the board of directors? A. I merely stated my case, or at least what I had done in connection with this matter, before the board. Mr. Rohan was not present, and after I got through stating my case I suggested that they would not take any action until Mr. Rohan would be present.

"Q. What, if anything, was said to you by any member of the board, or any one on behalf of them, concerning the authority or lack of authority of Mr. Rohan? . . . A. I started to tell what I had done in connection with the matter, but Mr. Leahy commenced interrogating me as to the legal features of it. He said, 'You had no written authority from the owner to sell that property?' I said: 'I did not try to sell the property; I was not representing the seller; I was supposed to represent the purchaser.'

"Q. What, if anything, Mr. Murphy, was said with respect to the authority or lack of authority of Mr. Rohan to employ Murphy & Scullin?"

"The Court: Let the witness state all that was said there." . . .

"A. I had that letter read that I had given to Mr. Rohan describing the property, and a letter from Mr. Levy.

"Q. That letter was read before the board? A. That letter was read before the board of directors. I don't remember if any other letter was read. I think not. And after discussing the case, the board of directors, with the exception of Mr. Leahy, I didn't take any active part in it, with the exception of Mr. Kehoe, Mr. Christopher Kehoe. After Mr. Levy's letter was read, Mr. Kehoe said: 'It seems to me it is simply a question of veracity between Mr. Levy and Mr. Leahy.'

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