Northrup v. Diggs

• Decision Date: 07 January 1908
• Citation: 128 Mo. App. 217,106 S.W. 1123
• Parties: NORTHRUP v. DIGGS.
• Court: Missouri Court of Appeals

106 S.W. 1123

128 Mo. A. 217

NORTHRUP v. DIGGS.

St. Louis Court of Appeals. Missouri.

January 7, 1908.

1. WITNESSES — EXAMINATION — SCOPE OF REDIRECT EXAMINATION.

In an action for commission for selling a lease, it is not error to permit plaintiff to testify on his redirect examination that defendant had offered to sell him the lease for a certain sum, where defendant in cross-examination of plaintiff brought out the subject of an offer by defendant to plaintiff to sell the lease.

2. APPEAL — HARMLESS ERROR — EXAMINATION OF WITNESS — LEADING QUESTIONS.

Though it is permissible to ask a witness, when called to contradict another, whether certain words were used, refusal to allow such questions is not ground of reversal when the witness's testimony shows a positive denial of the expressions attributed to him.

3. BROKERS — COMPENSATION — NEGOTIATIONS THROUGH OTHER AGENTS.

In an action for commissions for negotiating the sale of a lease for defendant, where it appeared that plaintiff offered to sell the lease for a certain amount, and the offer was refused, defendant would not be liable to plaintiff for commission, where he afterwards made the sale for that price to the same party through a different agent.

4. SAME — ACTIONS FOR COMPENSATION — TRIAL — INSTRUCTIONS.

In an action for commission for sale of a lease, where the petition alleged that plaintiff negotiated the sale of the lease, and after reaching an agreement whereby the purchaser agreed to pay a certain price for the lease the purchaser paid that amount to the defendant an instruction based on the theory that plaintiff had found a purchaser ready, willing, and able to buy the lease and brought him into communication with defendant is erroneous, because outside the scope of the petition.

5. SAME — SUFFICIENCY OF PERFORMANCE OF SERVICES.

One employed by the owner of a lease to negotiate a sale thereof, who begins the negotiations which finally result in a sale as authorized, may recover the compensation agreed on.

6. SAME — "NEGOTIATE."

In an action for commission for sale of a lease, in the petition, which alleges that defendant authorized plaintiff to negotiate a sale, the word "negotiate" should be construed to mean conversation in arranging the terms of a contract.

Appeal from St. Louis Circuit Court; George H. Shields, Judge.

Action by Frank B. Northrup against W. P. Diggs. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

On November 1, 1902, defendant had a lease, to run about two years and two months, on premises No. 316 N. Main street, in city block No. 11, city of St. Louis. The petition alleges, in substance, that on November 1, 1902, defendant, being desirous of selling his leasehold interest in said property, authorized plaintiff to negotiate a sale of it for $1,000, agreeing to pay plaintiff for his services whatever sum he might receive over and above $1,000; that plaintiff entered upon negotiations with the Mississippi Valley Trust Company, agent for the purchase of the property for the Terminal Railroad Company, which terminated in the sale of said lease for $2,000, which sum was paid to defendant by said trust company, agent of the Terminal Railroad Company, for said lease, but that defendant has failed and refused to pay plaintiff the sum of $1,000 for his services as he agreed to do. The answer was a general denial. Verdict and judgment for plaintiff for $1,000, from which defendant appealed. The evidence shows that the Terminal Railroad Company in 1902 wanted to acquire the property leased by defendant and other property in the neighborhood, for the purpose of building an elevated railroad over it, and had appointed the Mississippi Valley Trust Company its agent to acquire title to the property. The fact that the Terminal Railroad Company wanted the property was known to both plaintiff and defendant, and also to others, and its desire to acquire the property was a matter of common notoriety. Plaintiff was a tenant of defendant from month to month, and occupied the basement of the building, and had desk room in the office, his desk and plaintiff's setting back to back, only three or four feet apart. Plaintiff testified there was some talk between him and defendant about the sale of the lease, and he told defendant he would sell the lease for him and guarantee that he would get $1,000 for it; that defendant said he could have all he could get over $1,000, and to go out and sell it; that he started out to sell the lease, went first to the Terminal Railroad people, who directed him to the Mississippi Valley Trust Company as its agent; that he then called at said trust company, and was introduced to Mr. Benoist, the real estate officer of the trust company, and represented to him that he owned the lease and offered to sell it for $2,000; that Benoist said it was too much, and made no offer for the lease, stating he was not ready to take the matter up; that he saw Benoist about a dozen times afterwards in respect to the sale of the lease, but never got an offer from him, and reported the result of his conversation with Benoist...