Perles v. Feldman, 20967.

• Decision Date: 03 June 1930
• Docket Number: No. 20967.,20967.
• Parties: PERLES et al. v. FELDMAN.
• Court: Missouri Court of Appeals

28 S.W.2d 375

PERLES et al. v. FELDMAN.

No. 20967.

St. Louis Court of Appeals. Missouri.

June 3, 1930.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

"Not to be officially published."

Action by Marc Perles and another, copartners, doing business as Perles & Stone, against Julius Feldman. Judgment for defendant, and plaintiffs appeal.

Reversed and remanded.

Dubinsky, Duggan & Stein, of St. Louis, for appellants.

Greensfelder & Grand, of St. Louis, for respondent.

SUTTON, C.

This is an action to recover commissions in the sum of $3,100 for the sale of a leasehold for a term of ninety-nine years, belonging to defendant, on improved property located at the northwest corner of Sixth street and Lucas avenue, in the city of St. Louis.

The trial, with a jury, resulted in a judgment for defendant, and plaintiffs appeal.

Plaintiffs are copartners, doing business as real estate agents and brokers, under the firm name of Perles & Stone. Plaintiff Perles testified that in the latter part of August, 1927, defendant employed him to sell the leasehold at the price of $100,000; that he interested A. Levy in the property, who made an offer of $55,000 for the property and $25,000 additional to be put up as security on the leasehold. It appears that defendant when he obtained the leasehold deposited with the lessor securities amounting to $25,000 as security for the performance of his agreement with the lessor that he would erect certain improvements on the leasehold, said securities to be delivered back to the defendant when the improvements were erected. Plaintiff Perles further testified that, when he received the offer from Levy before mentioned, he submitted it to defendant; that defendant declined to accept the offer, but proposed that, if Levy would put up $25,000 cash as security for the erection of the improvements on the leasehold, and give a deed of trust for $65,000, he would make the deal; that he then submitted this proposition to Levy, who offered to give a $60,000 deed of trust, and put up the $25,000 as security; that in connection with this offer Levy gave him a check for $1,000 as earnest money; that he delivered this check to defendant and told him to think it over; that defendant declined to make that deal, but proposed that, if Levy would put up the $25,000 cash to cover his deposit made as security for the erection of the improvements on the leasehold, and give a $65,000 deed of trust, he would make the deal; that he and defendant then went to plaintiffs' office, and there together prepared a contract to be submitted to Levy for execution by him; that defendant assisted in the preparation of the contract; that when the contract was prepared defendant read it over and made some corrections in some of the spelling in the contract; that the contract was prepared in accordance with defendant's directions, and that the defendant agreed to make the deal on the terms as set out in the contract; that he told defendant he would take the contract and see Levy right away, and try to get him to sign the contract just as it was prepared; that he saw Levy the same day the contract was prepared, which was September 7, 1927; that Levy said he would study the contract over and let him know the next morning; that Levy signed the contract the next morning in his presence, and handed him a check for $1,000 as earnest money; that he then called defendant over the telephone and asked him to come to plaintiffs' office; that he delivered the contract to defendant at plaintiffs' office, and showed him the check.

The contract as prepared in plaintiffs' office acknowledged the receipt by the defendant of $1,000 as earnest money, and recited the sale by defendant of the leasehold to Levy for the sum of $65,000, payable as follows: Owner to make and purchaser is to assume a first deed of trust in the sum of $65,000, for a period of ten years, payable in nineteen notes, beginning six months from date of closing of sale, eighteen notes of $2,000 each, payable semiannually, and one note for the unpaid balance in the amount of $29,000, with interest at 6 per cent. payable semiannually, and provided that the purchaser would put up as security to the lessor $25,000 guaranty and allow the defendant to draw down the securities held by the lessor, that the sale should be closed on or before sixty days, and, if not accepted on or before September 8, 1927, it should be null and void, and that defendant would pay plaintiffs $3,100 for negotiating the sale, as follows: $1,500 in cash at the closing of the deal, and $1,600 balance as follows: One note for $800 payable six months from date of closing, and another note for $800 payable twelve months from date of closing, each bearing interest at 6 per cent.

Plaintiff Perles further testified that when this contract had been presented to Levy and he had examined it he stated that he wanted the privilege of paying the nineteen notes given for the purchase price of $65,000 before the due dates shown in the contract, if it should suit him to do so, and that Levy accordingly wrote into the contract a provision that all these notes should be payable on or before their due dates; that he then signed the contract; that when he delivered the contract as thus changed, and signed by Levy, to defendant, he called his attention to this change and that defendant stated that the contract as changed was all right, that if Levy wanted to pay off the notes before their due dates it was...