Piper v. Allen
| Decision Date | 26 January 1920 |
| Docket Number | No. 13460.,13460. |
| Citation | 219 S.W. 98 |
| Parties | PIPER v. ALLEN et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jackson County; Thos. B. Buckner, Judge.
"Not to be officially published."
Action by Lee O. Piper against D. B. Allen and Annie Allen, copartners, doing business as D. B. Allen & Co. Judgment for defendants, and plaintiff appeals. Reversed and remanded for new trial.
Roland Hughes and T. C. Sparks, both of Kansas City, for appellant.
Ernest D. Martin, of Kansas City, for respondents.
The case was appealed from the justice to the circuit court, where it was tried without a jury. At the conclusion of plaintiff's case, the court sustained a demurrer to the evidence, and rendered judgment for defendants. Thereupon plaintiff appealed.
Although some objection is made to the sufficiency of the petition, evidenced at the trial in the circuit court by an objection to the introduction of testimony, yet the action of the court was not based upon any such ground. But since the point is still made that the petition states no cause of action, we observe that, clearly, it is not so defective as to wholly fail to state any cause of action whatever; and, unless it is so defective as to state no cause of action at all, the point made is unavailable now. Besides, the pleading originated in a justice court, and is entitled to the liberality of construction accorded to such pleadings. Simrall v. American Multigraph Sales Co., 172 Mo. App. 384, 385, 158 S. W. 437. The statement filed in the justice court discloses the nature of the transaction in which the services were rendered, so that any judgment thereon would be a complete bar to any other suit on the same cause of action. Guarantee, etc., Co. v. St. Louis American League Co., 152 Mo. App. 601, 133 S. W. 849. The petition cannot be held to be wholly insufficient. Hale v. Taylor, 140 Mo. App. 692, 126 S. W. 755.
Plaintiff, although a farmer near Kansas City, had some real estate interests in the city which he looked after for himself and his brothers and sisters, and, for the past 15 years or more, had been helping real estate brokers make deals in real estate, sharing in the commission which the broker received. During at least 10 years of this time he had known the defendants, had listed some of his own property with them for sale, and had assisted them in the endeavor to make sales or trades of other property he had procured to be listed with them; but up to the time of the matters here involved no deals therein had been effected.
In the latter part of February, 1918, plaintiff learned from Percy Huckins, one of the "Huckins heirs," that they were wanting to exchange their Kansas City property for a farm. He thereupon took said heir to defendants' office and had him list the property with them. Said heirs had never heard of the defendants before. While in said office defendants prepared in duplicate a typewritten description of the property and its possibilities and advantages, one of which duplicate; they retained and gave the other to plaintiff. Defendants thereupon inserted a small advertisement in a paper, and in response thereto received a call from a Mr. Hough, who had for sale a farm which could be traded for city property. Thereupon defendant requested the plaintiff to get the Hue sins boys to come down to the office for the purpose of going to see Hough. He did get them to come to defendants' office with him, and, as they were leaving to go to see Hough, plaintiff said to defendants he "didn't think it was necessary" for him to go. Whereupon Mr. D. B. Allen (one of defendants) said:
"Yes; you come and go along with us; you know the piece of property better than I do, and they would be more apt to listen to you."
He went along, and, after the interview win Hough, in which a description of the property he had for sale or trade was obtain id for investigation, and as they were all leaving Hough's office, Allen said to Hough, "You collect the commission from your side, and we will collect the commission from our side," and plaintiff thought he was "in on" the commission to be coming from the Huckins heirs when the deal should be effected.
After investigating the property Hough had in charge, plaintiff urged upon the Hue dins heirs, or at least the one who was the manager of the estate and the one who was the dominant influence among them, the advisability of making the trade, and prevailed upon them to make the deal and not Let the chance go by.
There were, however, some matters among the heirs to be settled between themselves before they could make the deal or sign a contract. In fact, one of the Huckins heirs would not sign any contract for the trade until the matters between the heirs were adjusted, and he got up and left the room in defendants' office, where they had all met for the purpose of completing, if possible, the contract of trade. Mr. Allen seeing this heir leaving, said to plaintiff, "You go after him and get after him and get them together so we can make the deal." Plaintiff did as he was told. He went out and got the heirs together, urging them to settle their differences, and make the trade, and they finally did settle their differences among themselves and then signed the contract, agreeing to make the trade for the farm and to pay a commission of $400 to defendants. After the contract was signed, but before the trade was finally consummated and closed, the other member of the defendant firm said to plaintiff, in speaking of the commission on the trade, "You wouldn't want more than $50 out of that?" To this plaintiff replied, "I want fifty-fifty out of it."
At another time during the pendency of the deal, Percy Huckins, one of the Huckins heirs and the one whom plaintiff had taken to defendants' office, said to Mr. Allen, of defendants' firm, that plaintiff might expect some commission, and was entitled to it, as he (Huckins) certainly would not have gone to defendants if plaintiff hadn't brought him there. To this Mr. Allen replied, "I will fix up with Lee (plaintiff) on the commissions if he thinks any is due him."
After the deal was closed, and on the day the $400 commission was paid by the Huckins heirs to defendants, Percy Huckins told plaintiff he was going to pay the commission on the Hough deal that day, and plaintiff told him to go ahead and pay it to defendants, and it would be all right with him.
After the money was paid, and on the same day, plaintiff went to defendants' office to get his part, but Mr. Allen was out. He went again the next day, but Mr. Allen said he had sent the check away for collection. Two days later he again went to defendants' office to get his money. Mr. Allen at first offered him money to get a new suit of clothes, then offered him a check for $25, and finally offered him $100, but plaintiff refused, saying he wanted half the commission which was customary, as he had brought the customer to him, and had earned the commission the same as Allen had, and that if he did not receive $200 he would bring suit.
Plaintiff then consulted a lawyer for the purpose of...
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