Reitz v. O'Neil

• Decision Date: 07 February 1928
• Docket Number: No. 20096.,20096.
• Citation: 2 S.W.2d 178
• Parties: REITZ v. O'NEIL.
• Court: Missouri Court of Appeals

2 S.W.2d 178

REITZ v. O'NEIL.

No. 20096.

St. Louis Court of Appeals. Missouri.

February 7, 1928.

Appeal from St. Louis Circuit Court; M. Hartmann, Judge.

"Not to be officially published."

Action by Victor William Reitz, Jr., against H. H. Stratton. Judgment was rendered for defendant in the justice court, and plaintiff appealed to the circuit court. Pending a hearing in the circuit court, the defendant died, and the cause was revived in the name of Robert A. O'Neil, executor of the estate of H. H. Stratton. Judgment for plaintiff, and defendant appeals. Affirmed.

Taylor R. Young, of St. Louis, for appellant.

Cobbs, Logan & Alexander, of St. Louis, for respondent.

BENNICK, C.

This is an action by plaintiff, a real estate agent, to recover the sum of $500, alleged to have been due him as a commission earned in connection with the sale of certain property, owned by H. H. Stratton, the original defendant in the case. The proceeding originated in a justice's court, wherein a judgment was rendered in favor of the defendant, from which an appeal was taken by plaintiff to the circuit court. Pending a hearing in the latter tribunal, defendant, Stratton, died, whereupon suggestion of his death was made to the court, and the cause duly revived in the name of Robert A. O'Neil, the executor of his estate. Subsequently a trial was had before the court alone, a jury having been waived, and, from a finding and judgment for plaintiff, in the full amount of $500, defendant has perfected his appeal to this court.

The evidence disclosed that in March, 1922, at the instance of one Dall, a mutual friend of both original parties to this action, Stratton called plaintiff over the telephone, and engaged him to sell a certain building owned by the former, agreeing at the time to accept a minimum of $12,500 for the property, and promising to pay plaintiff a commission on the sale. It appears that plaintiff thereupon proceeded to advertise the property in the daily newspapers, and shortly thereafter was able to interest one Charles Giraffe in the purchase of the same, from whom, on July 3, 1922, earnest money in the sum of $200 was secured on an offer of $13,500 for the property. This offer was refused by Stratton, as was also a second offer by Giraffe of $13,750, and a third of $14,000. Thereupon Giraffe employed a real estate agent of his own choosing to act for him in the matter, who, dealing directly with Stratton, effected a purchase of the property for the sum of $14,000 net to Stratton. It was shown by defendant's own evidence, however, that Stratton, in completing such transaction, knew that Giraffe, the purchaser, was the party whose name had originally been submitted to him by plaintiff.

The first point insisted upon by defendant is that the court erred in permitting plaintiff to testify in the case, inasmuch as Stratton, the other party to the contract or cause of action in issue and on trial, was dead. Such was the identical objection interposed by counsel at the beginning of the taking of plaintiff's own testimony. As the case comes to us, however, whether plaintiff was in reality disqualified, for the reason assigned, from taking the stand in his own behalf, we need not decide, because, in any event, defendant is no longer in a position to complain. We say this for the reason that counsel for defendant subjected plaintiff to an extensive cross-examination regarding many material matters, concerning which he had not testified on direct examination, so that, whether or not it be held that plaintiff thus became in effect defendant's own witness as to such new matters (regarding which conclusion the authorities in this state are not in full accord), the result undoubtedly was that plaintiff's incompetency was thereby waived, assuming him otherwise to have been incompetent, in consequence of which the insistence here made that plaintiff was wholly disqualified from giving testimony in the case is now unavailing. Meffert v. Lawson, 315 Mo. 1091, 287 S. W. 610; McCune v. Goodwillie, 204 Mo. 306, 102 S. W. 997; Hume v. Hopkins, 140 Mo. 65, 41 S. W. 784; Johnston v. Johnston, 173 Mo. 91, 73 S. W. 202; Pierce Loan Co. v. Killian, 153 Mo. App. 106, 132 S. W. 280; Tierney v. Hannon's Ex'r, 81 Mo. App. 488.

The argument is next advanced that the court was in error in refusing defendant's requested declarations of law, designated A and B. Said declarations are lengthy, and, in view of the disposition to be made of the point, it would serve no useful purpose to incorporate them in this opinion. Suffice it to say that the substance of each and every proposition of law to be found in such refused declarations was fully covered in the one declaration of law given, which clearly disclosed the theory upon which the finding of the court was made, namely, that plaintiff had been employed by Stratton to sell the property in question, that plaintiff had found a purchaser, ready, able, and willing to buy at the price at which Stratton had agreed to sell, and that plaintiff had used reasonable diligence and skill to...