Nahn-Heberer Realty Co. v. Schrader

• Decision Date: 07 January 1936
• Docket Number: No. 23414.,23414.
• Citation: 89 S.W.2d 142
• Parties: NAHN-HEBERER REALTY CO. v. SCHRADER et ux.
• Court: Missouri Court of Appeals

89 S.W.2d 142

NAHN-HEBERER REALTY CO. v. SCHRADER et ux.

No. 23414.

St. Louis Court of Appeals. Missouri.

January 7, 1936.

Appeal from Circuit Court, Jefferson County; E. M. Dearing, Judge.

"Not to be published in State Reports."

Action by the Nahn-Heberer Realty Company against Bernhardt E. Schrader and wife. From an adverse judgment, the defendants appeal.

Affirmed.

James L. Wren, of St. Louis, for appellants.

Edgar & Matthes, of De Soto, for respondent.

HOSTETTER, Presiding Judge.

This suit was begun in the circuit court of Jefferson county on May 23, 1933. Plaintiff is a corporation engaged in the real estate business in the city of St. Louis, Mo. Defendants, who are husband and wife, owned certain real estate located in the city of St. Louis, on which there was an existing incumbrance of $4,000. They valued their property at $8,000, and wanted to exchange it for a farm.

Frank Goril and Bessie Goril, his wife, owned some real estate in Jefferson county, Mo. Representatives of plaintiff took defendants to see the Jefferson county property, introduced them to the Gorils, and, after an examination of the Jefferson county real estate be defendants and of the St. Louis real estate by the Gorils, a tentative agreement was reached whereby the properties were to be exchanged on the following terms, viz., Gorils to assume the payment of the $4,000 incumbrance and defendants to give the Gorils a deed of trust on the Jefferson county real estate for $2,200. A written agreement was prepared by plaintiff, based on this agreement, but when presented to defendants to sign, the husband (Mr. Schrader) said, "Well, I have changed my mind. I am not going to make the deal. Things have come up that I didn't understand before, and I can't go any further with the deal."

A little over a month thereafter plaintiff discovered, through the Daily Record, that the deeds were passed between defendants and the Gorils and duly recorded, carrying out the exchange of properties in accord with the terms of the previous tentative agreement and of the unsigned written contract. Hence, this suit for commission.

The petition, after setting out the incorporation of plaintiff and the business in which it was engaged, averred that defendants engaged plaintiff to procure a sale or exchange of their St. Louis real estate, and that, thereafter, plaintiff procured the Gorils to make an exchange of their Jefferson county real estate for that of defendants, and at its instance the parties met and negotiations were had for the exchange of their respective properties; that thereafter, defendants, without the consent of plaintiff, secretly negotiated with the Gorils for an exchange of their respective properties, and, on the first day of October, 1932, consummated such exchange by deeds duly executed and recorded; that defendants were indebted to plaintiff in the sum of $400 for commissions earned by it in being the procuring cause for the exchange of their real estate for that of the Gorils, and prayed judgment for said sum.

Defendants' answer contained, first, a general denial, and also a special denial of any authorization at any time by defendants of plaintiff to act as their agent or representative in said transaction.

It was further alleged in said answer that about the 30th day of December, 1932, plaintiff brought suit against the Gorils and procured and collected a judgment for $300 for representing them in such transaction and, by reason thereof, is estopped from claiming in this suit that it acted as the agent for defendants, and is estopped from claiming compensation from defendants for its alleged services in said transaction.

Plaintiff's reply contained a general denial of the new matter and an averment that prior to the date of its employment by defendants to procure a sale or exchange of their real estate, they had also been employed by the Gorils to sell or exchange their Jefferson county real estate, and that the defendants were fully informed by plaintiff of its said employment by the Gorils at the time it was employed by defendants, and that it continued to represent both defendants and the Gorils, with full knowledge by defendants, covering the time negotiations were had between said parties as a result of plaintiff's efforts for the exchange of the respective properties.

The case was heard by the court without the intervention of a jury. Three witnesses, one being the vice president of plaintiff, testified in its behalf in support of the matters hereinbefore set out, and, in reply to questions propounded by the court, it was developed that, according to the rules of the St. Louis Real Estate Exchange, 5 per cent. was the usual and customary charge as commission, and when a real estate company represented both parties it was the custom to charge and require each party to pay 5 per cent.

It was testified to by plaintiff's witnesses that both parties were informed and had knowledge of the fact that plaintiff was representing both the defendants and the Gorils in the transaction.

Mr. Schrader (the husband) was the only witness called by defendants, and he denied having had any contract with plaintiff, but admitted going with representatives of plaintiff and meeting Mr. Goril and looking over the Jefferson county real estate.

No instructions were asked by either party, and none given by the court.

There was a finding of the issues by the court in favor of plaintiff in the sum of $400, upon which judgment was rendered, and, after an unavailing motion for a new trial, the cause is brought to this court by appeal for review.

This being a law case, tried by the court without the intervention of a jury, and no instructions asked or given, very materially restricts the reviewing court. It is peculiarly the province of the trial court to determine the weight and credibility of the testimony, and, having done so, we, as a reviewing court, are as much bound by the finding and verdict of the trial court as we are by the verdict of the jury, and may not consider the evidence de novo. Craig v. Rhodes (Mo.Sup.) 298 S.W. 756, loc. cit. 758; Phillips v. Wilson, 298 Mo. 186, 250 S.W. 408; Sawyer v. French, 290 Mo. 374, loc. cit. 384, 385, 235 S.W. 126; First Nat. Bank v. Wilson (Mo. Sup.) 222 S.W. 381. In this situation, it has been held that the judgment of the trial court should be upheld by the reviewing court if it finds that there is substantial evidence to support it. Phillips v. Wilson, 298 Mo. 186, loc. cit. 198, 250 S.W. 408; Hunter v. Weil (Mo.Sup.) 222 S.W. 472; First Nat. Bank v. Wilson (Mo.Sup.) 222...