O'Neal v. Mavrakos Candy Co.
| Decision Date | 08 December 1952 |
| Docket Number | No. 21738,21738 |
| Citation | 255 S.W.2d 138 |
| Parties | O'NEAL v. MAVRAKOS CANDY CO. |
| Court | Missouri Court of Appeals |
Ira H. Lohman and Charles H. Howard, Jefferson City, for respondent.
Arthur G. Heyne, St. Louis, Joseph Nessenfeld, St. Louis, of counsel, for appellant.
This is an action to recover a commission alleged to be due the plaintiff for services in obtaining a store lease for the defendant (lessee). A jury was waived and on trial of the issues a judgment was rendered by the court in plaintiff's favor in the sum of $2,340, with interest from March 10, 1950. Defendant has appealed.
According to the plaintiff's evidence he was orally employed by defendant's president to obtain for the defendant a lease on a certain business property in Jefferson City, Missouri, for a candy shop to handle defendant's products. The premises were then already occupied by other tenants. Defendant was told by the plaintiff that the owners (lessors) would be unwilling to pay the plaintiff any commission in case a new lease were made, and that defendant would have to pay the commission; that Mavrakos said: 'Don't let that building get away from you'; that defendant proceeded to negotiate with the owners to terminate their present lease and entertain the defendant's proposition, which involved increase rental and substantial improvements to the property. The plaintiff had many conversations with the owners and with defendant's agents, and kept the defendant advised of his progress through its local agent in Jefferson City, according to defendant's instructions. Thereafter, without plaintiff's knowledge, a lease was entered into in St. Louis between the owners and the defendant by which the defendant agreed to pay $350 a month for four years on the premises in question, with four additional four-year extension options, plus six percent on all gross retail sales per annum in excess of $70,000, and defendant also agreed to expend over $30,000 in improvements of the premises, to be repaid to defendant out of the six percent of the retail sales, which arrangement, with subrentals, now had reduced the defendant's net rent on the candy shop to $25 a month.
Defendant's evidence contradicted practically all of the evidence of the plaintiff on the main issues, its witnesses testifying that no agreement was ever made to employ the plaintiff for any purpose, nor to pay him any commission whatever, and that the conversations with him had to do only with a possible purchase of the property, which plaintiff admitted he would be unable to procure. No requests were made of the court for any findings of fact or declarations of law, and the court made none.
At the outset the defendant contends that the action was brought on the theory of an express contract; that it was tried on that theory, and that proof of such contract wholly failed. Plaintiff maintains that the petition did not declare upon any express contract but upon an implied contract, and seeks to recover on quantum meruit; that it was tried on such theory and that each element thereof was fully established by the evidence.
The material allegations of the petition are that on May 31, 1949, the defendant, through its officers and agents, at Jefferson City, contacted the plaintiff in regard to leasing or buying a two-story building in Jefferson City for the purpose of a storeroom for the sale of its products and that on said day, through its officers, agents and servants, employed plaintiff to obtain a lease upon that property and 'defendant agreed to pay the plaintiff the usual and ordinary commission for his services in procuring said lease'; that in accordance with such request plaintiff did contact the various parties owning an interest in the property, discussed with them the desire and requirements of the defendant in a possible lease on the premises, and made a trip to St. Louis to contact some of the owners with a view of inducing them to lease the property to defendant.
The petition further alleges that after several conferences between the parties, the owners and defendants were brought together and agreed upon the terms of a lease, which was procured through the efforts of the plaintiff; that thereafter and on or about November 1, 1949, the defendant did enter into a written lease with the owners of the property for a term of four years, beginning January 1, 1950, at an annual rental of $4,200 payable in monthly installments of $350 each in advance, with an option to the defendant to renew said lease for four additional four-year periods on substantially the same terms, the defendant agreeing further to expend $30,000 as additional rent in the way of improvements to the property during the first four years, and that in accordance with the terms of the lease the defendant took possession of the property and is now engaged in remodeling and improving the same as a location for a candy store and as an outlet for the defendant's merchandise. The petition alleges that the total rental fixed for the first four years of the lease was $16,800, and the $30,000 to be expended upon improvements by the defendant is additional rental accruing to the owners, making the total rental, if options for extensions are exercised, of $114,000. It is further alleged that the usual and ordinary commission for securing such leases in Jefferson City is five percent of the total gross rental of said property. It is averred that by reason thereof the defendant is indebted to the plaintiff for five percent of the total rental of $5,700, of which there is now due such percentage on the first four years of the rent ($16,800) and five percent on the $30,000 rental by virtue of improvements, making the total sum now due the plaintiff of $2,340, for which demand has been made and refused.
If the foregoing petition declares upon an express contract, no recovery thereon can be had on the theory of an implied contract, or on the theory of quantum meruit, or on mere proof of reasonable value of the services. 'It is no doubt true that one cannot declare upon an explicit contract and then recover as upon a quantum meruit.' Stanley v. Whitlow, 181 Mo.App. 461, 464, 168 S.W. 840, 841. See Mills v. Metropolitan Street Railway Co., 282 Mo. 118, 221 S.W. 1. 'For the trial court to give these instructions was error as the law has been definitely established in this State that in an action on an express contract a recovery cannot be had as on a quantum meruit.' Boyer v. Eberts, Mo.App., 241 S.W.2d 44, 46. See, also, Littlefield v. Littlefield, Mo.App., 168 S.W. 841; Usona Mfg. Co. v. Shubert-Christy Corp., Mo.App., 132 S.W.2d 1101, 1103.
The three main elements of plaintiff's cause of action, as alleged, are that he was orally employed by the defendant to procure a lease on the particular property; that defendant agreed to pay plaintiff the usual and ordinary commission to obtain such a lease, which commission would be 5 percent on the gross rental, and that plaintiff rendered the services agreed upon. If this be a declaration on an express contract the amount of recovery is limited to the amount expressed and conditioned upon proof thereof, to wit, five percent of the gross rental. If it be a declaration on an implied contract, recovery may be had on quantum meruit for the reasonable value of the services rendered at the defendant's instance and request. Having pleaded an employment and the rendition of the services in the petition before us, the plaintiff then charges the defendant with having also agreed to an exact method of calculation by which the exact amount of the compensation was to be computed. This, in our opinion, constitutes a declaration on an express contract in which the valuation of and compensation for the services were expressly and explicitly agreed upon. It follows that to recover on the petition, as drawn, plaintiff must prove, among other elements of his cause of action, that defendant agreed to pay plaintiff a commission of five percent of the gross rental on a lease if and when procured.
We turn to the evidence of the plaintiff on the agreement as to the amount of the compensation. The plaintiff testified
* * *
(Minimum schedule of commissions published by the Real Estate Board of Jefferson City was introduced in evidence).
'Q. Is that the schedule of fees in force in Jefferson City? A. That is right. This is the minimum fee achedule of the Jefferson City Real Estate Board. * * * (reading): .
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