O'Neal v. Mavrakos Candy Co.
| Decision Date | 14 December 1953 |
| Docket Number | No. 43669,43669 |
| Citation | 263 S.W.2d 430,364 Mo. 467 |
| Parties | O'NEAL v. MAVRAKOS CANDY CO. |
| Court | Missouri Supreme Court |
Arthur G. Heyne, St. Louis, for appellant. Joseph Nessenfeld, St. Louis, of counsel.
Ira H. Lohman, Jefferson City, for respondent. HYDE, Judge.
Action to recover commission claimed to be due for obtaining a lease for the lessee. The Court, a jury being waived, found for plaintiff for $2,340 and defendant appealed to the Kansas City Court of Appeals. That Court reversed the judgment on the ground that plaintiff declared upon an express contract and failed to prove it; but remanded with directions to permit plaintiff to amend his petition to declare on quantum meruit.
The facts are sufficiently stated in the opinion of the Court of Appeals, O'Neal v. Mavrakos Candy Co., 255 S.W.2d 138, and are hereby adopted as our statement. Plaintiff's petition alleged that defendant employed plaintiff to obtain a lease on the Hope Building in Jefferson City 'and did agree to pay the plaintiff the usual and ordinary commission for his services in procuring said lease, providing that the defendant was able to procure a lease on the aforesaid building and premises.' However, plaintiff's testimony was that he only told Mr. Mavrakos that the owners would not pay a commission and that he would have to pay the commission. Plaintiff admitted that he said nothing to Mavrakos about the amount of commission. See plaintiff's testimony set out in the Court of Appeals opinion, 255 S.W.2d loc. cit. 141. Therefore, the Court of Appeals correctly held that an express contract for commission was not established.
However, plaintiff says his allegation that defendant agreed to pay the usual and ordinary commission is an allegation that he agreed to pay a reasonable commission and is sufficient to state a claim in quantum meruit. He cites Black's Law Dictionary, 3rd Ed. 1499, which gives 'ordinary or usual' as one definition of 'reasonable.' Plaintiff also cites 8 Am.Jur. 1070, Sec. 146, as follows: Also citing 12C.J.S., Brokers, Sec. 78, page 170; Klein v. St. Louis Terminal R. Ass'n, Mo.App., 268 S.W. 660; Hoyt v. Buder, 318 Mo. 1155, 6 S.W.2d 947; Muench v. Southside National Bank, Mo.Sup., 251 S.W.2d 1. However, in all three of these cases there was an allegation as to reasonableness of the charges. The word 'reasonable' does not appear in plaintiff's petition. He only alleges that the defendant agreed to pay the usual and ordinary commission and then says 'that the usual and ordinary commission for securing leases on industrial property in Jefferson City, Missouri, is 5% of the total gross rental value of said property.' Therefore, to construe this petition as quantum meruit, we would have to go beyond any of the cases plaintiff cites.
However, even if we could imply the allegation of reasonableness of the charge, there is another defect in making plaintiff's case on quantum meruit, which is no mere technical question of pleading, namely, the lack of proof of either reasonableness of the amount claimed or of any custom or usage applicable to the transaction. Plaintiff, for such proof, relied entirely upon the minimum schedule of fees adopted by the Jefferson City Real Estate Board, but the only fees shown for negotiating leases are those to be paid by the owner or lessor. This very clearly appears from the provisions in the schedules requiring the lessor to pay them. Payment by the lessee is not mentioned. These fees are based on a percentage of the total or gross rents which the lessee is obligated to pay to the lessor. While, no doubt, this is a reasonable basis for the fee to be paid by the lessor, because the more rent he gets the more he is benefited, this is obviously not true as to the lessee. Certainly a lessee would not be benefited...
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Farmer v. Taylor
...736(9).9 Contrast also Houfburg v. Kansas City Stock Yards Co. of Maine, Mo., 283 S.W.2d 539, 546-548(15-17); O'Neal v. Mavrakos Candy Co., 364 Mo. 467, 263 S.W.2d 430, 432(6), Id., Mo.App., 255 S.W.2d 138, 142(6); Cudney v. Midcontinent Airlines, Inc., 363 Mo. 922, 254 S.W.2d 662, 667(9); ......
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