Nesbitt v. Flaccus

• Decision Date: 17 November 1964
• Docket Number: No. 12307,12307
• Citation: 149 W.Va. 65,138 S.E.2d 859
• Court: West Virginia Supreme Court
• Parties: Samuel L. NESBITT v. Edward J. FLACCUS et al.

Page 859

138 S.E.2d 859

149 W.Va. 65

Samuel L. NESBITT v. Edward J. FLACCUS et al.

No. 12307.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 8, 1964.

Decided Nov. 17, 1964.

Syllabus by the Court

1. While this Court may take judicial notice of a statutory city charter or any act of the Legislature, it will not do so in relation to a municipal ordinance.

2. 'If an instruction given to the jury is not a binding instruction and some element is omitted in the instruction which should have been included, it is not reversible error to give such instruction if other instructions given by the court contain or include such omitted element.' Point 7, Syllabus, Lawrence v. Nelson, 145 W.Va. 134 .

3. A binding instruction which directs the jury to find for a party if it believes that certain facts therein enumerated are established by the evidence must not omit any fact essential to such finding, and such instruction must be complete in itself and can not be supplemented by other instructions given.

4. In a civil action no party may assign as error the giving of an instruction unless he objects thereto before the arguments to the jury are begun, stating distinctly the matter to which he objects and the grounds of his objection.

5. Questions of fact are for jury determination and where the jury has made a finding based upon credible evidence the verdict of the jury will not be disturbed.

6. In determining whether the verdict of a jury is supported by the evidence, every reasonable and legitimate inference, fairly arising from the evidence in favor of the party for whom the verdict was returned, must be considered, and those facts which the jury might properly find under the evidence must be assumed as true.

7. 'The broker is entitled to his commission, although he may not have conducted all of the negotiations leading to the sale, it being sufficient if he set in motion the machinery by which the work was done, which without break in its continuity was the procuring cause of the sale. Whether or not this was the case, ordinarily, is a question of fact for the jury.' Point 4, Syllabus, Averill v. Hart & O'Farrell, 101 W.Va. 411 .

Beneke & Callahan, Louis J. John, Wheeling, for appellant.

McCamic & Tinker, Jeremy C. McCamic, Wheeling, for appellees.

CAPLAN, Judge:

This an action instituted by the plaintiff, Samuel L. Nesbitt, wherein he seeks to recover from the defendants, Edward J. Flaccus, George E. Thieroff and Arthur C. Stifel, Jr., a certain sum of money which he alleges is owing to him as his commission on the sale of certain property owned and sold by the defendants. Upon the trial of this case the jury returned a verdict in favor of the plaintiff. On this appeal this Court is requested to reverse the judgment entered thereon and to grant the defendants a new trial.

An examination of the record reveals the following facts. On February 12, 1958, the defendants purchased from Indian Head Mills Corporation certain real estate in North Wheeling, known as the L. J. Stifel Company property. This property consisted of two separate structures designated as Buildings A and B. Prior to this sale to the defendants, a Mr. Exley, President of the Ohio Valley Drug Company, considered the purchase of this property and was shown through it by an agent of the then owner. Although Mr. Exley did not purchase the property at that time, he expressed an interest in it to Mr. Flaccus after Mr. Flaccus and his associates acquired the property. Mr. Flaccus did not thereafter contact Mr. Exley in relation thereto.

On May 4, 1959, the defendants entered into an agreement with a real estate broker in Wheeling, whereby the broker was granted the exclusive right to sell or rent this property. This exclusive right terminated on January 1, 1960, it being apparent from the record that the broker did not succeed in his endeavor.

In late March or early April, 1960, Mr. Nesbitt, the plaintiff, contacted Mr. Thieroff and inquired if Building B of the subject property was for sale and whether or not there was an exclusive listing therefor with any real estate broker. Mr. Thieroff replied that the property was for sale and that the plaintiff could sell it if he and the other owners received the net sum of $200,000.00 from such sale. He further told the plaintiff that any commission received from the sale would have to be from an amount over and above the $200,000.00. Mr. Nesbitt informed Mr. Thieroff at that time that he had a prospect for the purchase of Building B, although he did not reveal the identity of such prospect.

Having this authority to sell the property, the plaintiff approached Mr. Exley, of Ohio Valley Drug Company. He showed Mr. Exley through the premises and pointed out various items therein which he considered as assets. Mr. Exley was informed by the plaintiff that he could purchase Building B separate and apart from the other building. This was the first time Mr. Exley knew that Building B was available as a separate purchase, and he testified 'That had some effect on my interest, because I wasn't interested in the whole property.' When the plaintiff quoted the price of the building at $210,000.00, Mr. Exley indicated that the price was too high but that he would have to discuss the matter with his board of directors.

Approximately ten days after he was shown through the subject property, Mr. Exley informed the plaintiff that his company had decided to exercise its option on another property and that it was no longer interested in Building B. That was the end of the discussion, concerning this property, between Mr. Exley and Mr. Nesbitt.

It is revealed by the record that the Ohio Valley Drug Company did not exercise its option to purchase the other property and again exhibit an interest in the Stifel building. Thereafter, Mr. Exley approached Mr. Flaccus for the purpose of negotiating for the purchase of the subject property. He indicated his interest in acquiring this building if the defendants would purchase the building then occupied by the Ohio Valley Drug Company.

Following lengthy negotiations, the parties, Ohio Valley Drug Company and the defendants, entered into a purchase agreement. In January, 1961, the defendants executed and delivered a deed conveying Building B of the Stifel property to the Ohio Valley Drug Company. Mr. Nesbitt was not consulted during this time, nor did he participate in the negotiations or the closing of the sale. The consideration received by the defendants for this property was the sum of $168,000.00.

Upon the refusal of the defendants to pay the plaintiff a commission on the foregoing sale, the plaintiff instituted this action. In his complaint the plaintiff alleges that it was through his 'Agency and work' that the defendants sold the subject real estate to the Ohio Valley Drug Company and that he was therefore entitled to a commission in the amount of $7,040.00. Upon the trial of this case the jury returned a verdict for the plaintiff in the sum of $6,500.00.

In their petition for appeal the defendants list numerous assignments of error. The principal assignments relied on for reversal are: (1) The court erred in allowing the plaintiff to maintain this action for broker's commission, the plaintiff not being a licensed real estate broker in the City of Wheeling, as required by the city ordinance; (2) the verdict is contrary to the law and evidence and it is not supported by the evidence; (3) the court erred in refusing to give on behalf of the defendants a peremptory instruction; (4) the court erred in overruling defendants' motion for summary judgment; (5) the court erred in giving certain of plaintiff's instructions and in refusing certain instructions offered by the defendants; (6) the court erred in refusing defendants' motion for a continuance; (7) the court erred in allowing plaintiff to recover on a quantum meruit count; and (8), the court erred in allowing the verdict to stand as not being excessive in view of the amount of services performed by the plaintiff.

The defendants contend that the plaintiff is precluded from maintaining this action by reason of his failure to obtain a city license to operate as a real estate broker as required by certain city ordiances. It would be necessary, in order to pass upon that question, to examine the pertinent municipal ordinances and to determine their character. However, an examination of the record reveals that such ordinances were not made a part thereof. They are in no manner before this Court.

It is a well recognized rule of law that, although a court may take judicial notice of a municipal charter, it will not judicially take notice of ordinances of a municipal corporation. 7 M.J., Evidence, Section 5. As stated in 20 Am.Jur., Evidence, Section 38, 'As a general rule, upon a review of a municipal court judgment involving only questions of law, the reviewing court may not take judicial notice of an ordinance, even though the municipal court was entitled to do so. Accordingly, failure to include an ordinance in the records or in a bill of exceptions precludes its consideration by the reviewing court.'

Inasmuch as the ordinances to which the defendants refer are not before us, we can not determine the question here presented. For this reason this assignment of error must fail.

The defendants assign as error on this appeal the refusal of the trial court to give certain instructions offered by them. The instructions offered and so refused are numbered 2, 4, 5, 6, 7 and 8. Our examination of the record reveals that Instruction No. 2 was given as amended, the only objection made thereto being that a certain portion was deleted. The deleted portion was not preserved as a part of the record and the objection will not now be considered.

In relation to Instructions Nos. 4, 7 and 8, offered by the defendants, no objection was noted when they were refused by the court. It is clearly stated in Rule 51, West...