Schaeffer v. Reineke

• Decision Date: 08 November 1938
• Docket Number: No. 24731.,24731.
• Citation: Schaeffer v. Reineke, 121 S.W.2d 213 (Mo. App. 1938)
• Parties: SCHAEFFER et al. v. REINEKE.
• Court: Missouri Court of Appeals

121 S.W.2d 213

SCHAEFFER et al. v.REINEKE.

No. 24731.

St. Louis Court of Appeals. Missouri.

November 8, 1938.

Appeal from Circuit Court, St. Louis County; Julius R. Nolte, Judge.

"Not to be published in State Reports."

Suit by Julius O. Schaeffer and Walter H. Schaeffer, copartners, doing business as the Schaeffer Realty Company, against Harry J. Reineke to recover a commission for procuring a purchaser for realty and to recover for services and expenses in procuring for defendant shares of stock.Judgment for plaintiffs, and defendant appeals.

Judgment affirmed.

Bert W. Newton and W. W. Sleater, Jr., both of St. Louis, for appellant.

Hyman G. Stein, of St. Louis, for respondents.

McCULLEN, Judge.

This suit was instituted by respondents, hereinafter referred to as plaintiffs, to recover from appellant, who will be referred to as defendant, the sum of $1,600 as commission or compensation for procuring for defendant a purchaser of real estate; and also to recover the sum of $305 for services and expenses in procuring for defendant shares of the capital stock of a corporation.

A trial before the court and a jury resulted in a judgment in favor of plaintiffs and against defendant on each of the two counts of plaintiffs' petition.Defendant has duly brought the case to this court by appeal.

Plaintiffs were co-partners in the general business of real estate brokers.

In count one of their petition, plaintiffs alleged, in substance, that Zephyr-Bellevue Realty Company, a Missouri corporation, owned certain real estate located on the southwest corner of Zephyr and Bellevue Avenues in the City of Maplewood, Missouri; that defendant owned a large amount of the capital stock of said corporation, and was the president thereof; that defendant represented to plaintiffs that through said stock ownership, he controlled the business policies and affairs of said corporation; that, on October 24, 1935, defendant employed plaintiffs to obtain a purchaser of said real estate for the price of $32,500 in cash, and executed and delivered to plaintiffs a written agreement whereby he authorized plaintiffs to sell said real estate for said price on or before Saturday, October 26, 1935; and agreed to pay plaintiffs compensation in the sum of $1,600.The written agreement was attached to plaintiffs' petition as plaintiffs' Exhibit A.

Plaintiffs alleged that they procured a purchaser who was, and ever since has been, ready, willing, and able to purchase said real estate for cash at the price mentioned; that said purchaser executed an earnest money contract and deposited with plaintiffs $500 as earnest money and part payment of the purchase price thereof; that, on October 26, 1935, plaintiffs informed defendant that they had procured such purchaser at the price mentioned, and delivered to defendant said earnest money contract; that thereafter defendant informed plaintiffs that he would not cause or permit said corporation to sell said real estate to such purchaser for said price; that defendant thereby became and is indebted to plaintiffs in the sum of $1,600, which he refused to pay.Plaintiffs prayed judgment on the first count in the sum of $1,600, with interest at six per cent. per annum.

Count two of plaintiffs' petition alleged, in substance, that, on or about January 19, 1935, defendant employed plaintiffs to purchase on his behalf shares of the capital stock of the Zephyr-Bellevue Realty Company, a corporation, and agreed to pay plaintiffs for their services certain compensation; that thereafter plaintiffs negotiated for the purchase, on behalf of defendant, of approximately 2,569 shares of the capital stock of said corporation; that, at the request of defendant, plaintiffs advanced the sum of $10 for expenses in connection with procuring a report relative to the title to the real estate owned by said corporation; that, after defendant had made partial payment to plaintiffs of the amount due them for their said services and said advancement, it was agreed between them that defendant was indebted to plaintiffs in the sum of $305 for which amount plaintiffs prayed judgment.

The cause was tried on plaintiffs' petition and on a general denial by defendant as to each of the two counts of plaintiffs' petition.At the trial it was the contention of plaintiffs, as it is in this court, that, under their contract in the first count, all they were required to do was to obtain for defendant a purchaser who was ready, willing, and able to purchase the real estate described.

As to the second count, plaintiffs contend, and their evidence shows, that on June 26, 1935, they had a meeting with defendant at which an account stated was agreed on to cover payment for their services in purchasing the shares of the capital stock of the Zephyr-Bellevue Realty Company for defendant; that defendant paid them the sum of $300 at that time on said account stated, and that a balance of $305 is still due.

As to count one, it was and is the contention of defendant that plaintiffs, who drew up the contract or agreement of October 24, 1935, in truth and in fact intended to do business with the Zephyr-Bellevue Realty Company, the corporation which owned the real estate in question; that, through an oversight or mistake, plaintiffs neglected to add the title of defendant, as president, on the line of said contract where they desired defendant's signature; that said contract or agreement was not a personal obligation of defendant; that no tender of performance of such agreement was made to him, but, instead, was made to the Zephyr-Bellevue Realty Company, the corporation; that defendant understood that said agreement of October 24, 1935, was to cover the sale of stock held by defendant and his brother in said corporation.

Under count two defendant contended, as he does in this court, that there was no stated account and no reason for any between him and plaintiffs because, on June 26, 1935, plaintiffs had been paid all, if not more, money than they had coming to them for obtaining the number of shares of stock in the Zephyr-Bellevue Realty Company which they did obtain for defendant.

The contract or agreement, upon which plaintiffs base count one of their petition, was introduced in evidence by plaintiffs as Exhibit C.It is as follows:

                    "October 24th, 1935
                "Schaeffer Realty Co
                "Wainwright Bldg
                "St. Louis, Mo
                "Gentlemen: —
                

"You are hereby authorized to sell property located at South-West Corner Zephyr and Bellevue at a price of $32,500.00 cash, on or before Saturday, October 26th, 1935.

"For your services in negotiating said sale, I hereby agree to pay a commission of $1600.00.

                          "H. J. Reineke."
                

The evidence shows that the Zephyr-Bellevue Realty Company, a corporation was the owner of the real estate in question upon which was located a twelve-family apartment house; that said property was the sole asset of the corporation named.

PlaintiffJulius O. Schaeffer testified that, in October, 1934, defendant told the witness that he was going to change his line of investments; that he thought real estate was a good thing to invest in, and requested the witness to see if he could get him a bargain in an investment piece of property with some speculation to it; that, in the latter part of October that year, the witness submitted to defendanta proposition concerning the real estate involved herein, and informed defendant that said property had been foreclosed under a first deed of trust and was then in the hands of about fifteen lienholders who had formed a corporation and had taken stock, therein in proportion to the amount of their liens; that defendant inquired the price of said property, and the witness informed defendant that he was not authorized to offer a price but asked the defendant to make an offer; that defendant went out and inspected the property two or three times, and later told the witness he would give $22,500 cash for the property; that, at defendant's request, the witness made an effort to buy the property for defendant.It appears that the witness did not purchase the property for the defendant at that time, for he testified further that, in January, 1935, he had negotiations with defendant with respect to the purchase of the stock of the Zephyr-Bellevue Realty Company, the corporation which owned the real estate in question; that defendant directed plaintiffs to buy the stock of said corporation.Plaintiffs proceeded to purchase the stock of said corporation for defendant from various holders thereof until they had acquired 2,569 shares for defendant.The entire capital stock of said corporation consisted of 3,067 shares.

The witness gave testimony showing the various steps taken by plaintiffs in acquiring said stock and the prices paid therefor to the various holders thereof; and testified further that from time to time, while they were engaged in this work, they had numerous conferences with defendant, and made various arrangements from time to time as to their compensation for such services; that, in June, 1935, there were outstanding 498 shares of said stock which had not been purchased by plaintiffs for defendant; that, on June 26, 1935, there was a conference between defendant and the witness in which they sat down and figured out that there was a balance due plaintiffs amounting to $605 for their services in procuring the stock; that defendant gave the witness on that day a check for $300 and said he would pay the balance within the next month or so.

It appears from the evidence for plaintiffs that the money to pay for the stock was advanced from time to time by checks of defendant; and that plaintiffs had no transactions with respect to such stock with defendant's brother.It also appears that, about February 16, 1935, a small amount of stock was in Julius Schaeffer's name, as defendant's representative, and he was for a short time a director of the corporation,...