Shortridge v. Raiffeisen
| Decision Date | 14 June 1920 |
| Citation | 222 S.W. 1031,204 Mo.App. 166 |
| Parties | E. S. SHORTRIDGE, Respondent, v. CHAS. H. RAIFFEISEN, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Pettis Circuit Court.--Hon. Hopkins B. Shain, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
C. C Kelly and Lamm, Bohling & Lamm for appellant.
W. W Blain and A. L. Shortridge for respondent.
This action originated in a justice court and is a suit by a real estate broker for his commission. The case was tried anew in the circuit court on appeal and the jury returned a verdict for plaintiff. The defendant has appealed.
The statement filed with the justice, and upon which the case was tried, is, for the first time, attacked in this court as being insufficient. It reads as follows:
In view of the liberality of construction and requirement accorded pleadings in a justice court, we are unwilling to hold the above to be so defective as to state no cause of action at all. It gives the names of the debtor and the plaintiff or creditor, the amount of the debt claimed, the rate per cent of the debt claimed as a commission and designates the real estate on which the commission is claimed. Indeed, the words "sale of" after the word "on" and before the words "Real Estate" are all that is lacking to make the statement complete in every particular and free from the most technical criticism. We think the statement is sufficient to inform the defendant of the nature of the action and to bar recovery in another suit. When it meets these requirements, it will not be held to be fatally defective so as not to support the judgment. [Jarrett v Mohan, 142 Mo.App. 29, 23, 126 S.W. 212; Smith v. Truitt, 107 Mo.App. 1, 7, 80 S.W. 686.] However, even if it be deemed defective, it could on a remand be amended. [Rechnitzer v. Vogelsang, 117 Mo.App. 148, 152, 93 S.W. 326.] And since the judgment will have to be reversed and the cause remanded for a reason hereinafter stated, the plaintiff can amend it by inserting the omitted words showing it was for a sale of the real estate.
The facts of this case make it somewhat unusual and a little out of the ordinary line of cases of this character This is not a case where the broker finds a purchaser or introduces him to the owner, but is one where the owner and the purchaser-to-be have been negotiating with each other over a purchase of the property but their negotiations have not been successful, and the broker comes into the affair and exerts his efforts to accomplish or bring about a sale, and after he has exerted his efforts and has repeatedly gone back and forth between them, and finally on the day the sale was made, telephones the purchaser to come into town on that day and the purchaser in response to the telephone, comes, but instead of going to the broker, meets with the owner and closes the deal without him.
Defendant insists that this was a special contract, that plaintiff was employed to effect a sale at a certain price in cash, and that as the sale was not made at that price or on the terms specified, the plaintiff did not perform his contract, and hence is not entitled to recover; also that there is no evidence in the case tending to show that plaintiff's efforts were the procuring cause of the sale. With reference to this, it may not be amiss to observe that no demurrer to the evidence was interposed, and defendant joined with plaintiff in asking the court to instruct upon the issues, thereby admitting that there was evidence upon which to go to the jury. [Kenefick Hammond Co. v. Norwich Ins. Society, 205 Mo. 294, 312, 103 S.W. 957; Hansen v. Boyd, 161 U.S. 397, 402, 40 L.Ed. 746, 16 S.Ct. 571; Hartford Ins. Co. v. Unsell, 144 U.S. 439, 451, 36 L.Ed. 496, 12 S.Ct. 671.]
We are not in a position to say that conclusively plaintiff had only a limited contract and, therefore, cannot recover because he did not perform the terms thereof. The evidence is that when plaintiff first spoke to defendant about selling the house for him, he, plaintiff, told defendant that Denny was the man he had in view as a prospective purchaser. Defendant said, Plaintiff asserted that he could sell him a house and that Denny could be induced to buy defendant's. Whereupon defendant said, And plaintiff said, "All right, I will try him."
The price defendant had been holding his house at and the price he named to plaintiff was $ 10,000, but later the plaintiff informed him that Denny would buy the house if defendant could take a little less than that, and defendant promised to go over his bills to see what expense the house had been to him and he would then report. He did so and told plaintiff he would take $ 9,500 but couldn't take any less that that and pay a commission. Plaintiff saw Denny repeatedly about the matter, and the latter came several times to plaintiff's office about it, but Denny said he was not yet ready to make an offer as he had matters on the farm to shape up but that he would in about three weeks. In the meantime, at Denny's suggestion, plaintiff investigated the cost of the house and reported to Denny what he had learned from the contractor who built it. After seeing Denny three or four times, Denny proposed to put in a lot he owned at part pay on the house at a valuation of $ 2000. This plaintiff communicated to defendant who refused to take the lot. Plaintiff continued in his efforts to sell the house to Denny.
At some time during the transactions, Denny made a deal whereby he thought he had purchased another house of one Cadle, but in some way this deal fell through. Defendant seems to think that the record conclusively shows that plaintiff did not come into the matter until after the Cadle deal fell through but manifestly there is evidence from which it might be found that plaintiff was talking to Denny and trying to get him to make an offer on Defendant's house before this. And plaintiff obtained a promise from Denny that if the Cadle deal did fall through he would make an offer on the defendant's house. Plaintiff kept track of the Cadle deal and as soon as it was off he called Denny over the telephone and made an appointment with him to come in that day and make the deal for defendant's house. Denny did come in but, although plaintiff waited for him at his office, Denny did not come to plaintiff but got with d...
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