Smith v. Welch, 11793

• Citation: 611 S.W.2d 398
• Decision Date: 21 January 1981
• Docket Number: No. 11793,11793
• Parties: Mancil SMITH, Plaintiff-Respondent, v. Larry WELCH, Hitchin' Post, Inc., a Corporation, and James W. Noble, and Betty J. Noble, His Wife, Defendants-Appellants.
• Court: Court of Appeal of Missouri (US)

Page 398

611 S.W.2d 398

Mancil SMITH, Plaintiff-Respondent, v. Larry WELCH, Hitchin' Post, Inc., a Corporation, and James

W. Noble, and Betty J. Noble, His Wife,

Defendants-Appellants.

No. 11793.

Missouri Court of Appeals, Southern District.

Jan. 21, 1981.

James E. Curry, John H. Tharp, Jr., Ava, Maurice W. Covert, Houston, for defendants-appellants.

Albert F. Turner, Mountain Grove, Daniel P. Wade, Ava, Harold J. Fisher, Lynn C. Rodgers, Woolsey, Fisher, Whiteaker & Stenger, Springfield, for plaintiff-respondent.

FLANIGAN, Judge.

Plaintiff Mancil Smith, a licensed real estate broker, brought this action against defendant Larry Welch, also a licensed real estate broker, and defendants James Noble and Betty Noble, his wife. All of the significant events took place in 1973.

On February 16 Mr. and Mrs. Noble, as "owners," entered into a listing agreement with plaintiff, as broker, by the terms of which the Nobles granted plaintiff "the exclusive right to sell" their farm for a period of three months ending May 15. The sale price was listed as $142,000 and plaintiff was to receive 10 percent of the sale price as his commission.

On May 13 Jacob Tanis and his wife Sally, accompanied by defendant Welch, inspected the farm with the permission of defendants Noble. On May 19 Jacob and Sally Tanis and his parents bought the farm from the Nobles for $160,000. Plaintiff was not paid a commission.

Count I of the petition sought actual damages in the sum of $16,000 and Count II sought punitive damages. The case was tried to a jury which found the issues in favor of plaintiff and awarded actual damages of $16,000 plus interest from May 13 against the three defendants and punitive damages of $2,000 against each of the three defendants. Defendants appeal.

Defendants, in their joint brief, challenge the sufficiency of the evidence to support the verdict, certain evidentiary rulings of the trial court, and the propriety of two instructions given on behalf of plaintiff. Appellate review is limited to those issues presented in defendants' points and they alone need be and are considered. Pruellage v. De Seaton Corporation, 380 S.W.2d 403, 405(3) (Mo.1964); Brewer v. Blanton, 555 S.W.2d 381, 383(1) (Mo.App.1977).

Defendants' first point is that the plaintiff failed to make a submissible case and that the trial court erred in not sustaining defendants' motion for a directed verdict which was offered at the close of all the evidence. Defendants' first point is based upon two grounds: (a) Plaintiff's trial theory was based on conspiracy, as distinguished from tortious interference with a contract, and conspiracy alone is not actionable; (b) The evidence was insufficient in certain factual respects to be set forth later in this opinion.

Ground (a) is factually true in the sense that plaintiff's counsel at the trial informed the court, "We are not dealing with a tortious interference with a contract, we are dealing with a conspiracy." It is also true, as an abstract legal principle, that conspiracy alone is not actionable. "The gist of the action is not the conspiracy, but the wrong done by acts in furtherance of the conspiracy or concerted design resulting in damage to plaintiff." Rosen v. Alside, Inc., 248 S.W.2d 638, 643(2, 3) (Mo.1952).

The existence of ground (a), standing alone, does not make defendants' first point a meritorious one. The validity of defendants' first point hinges upon ground (b) and that ground must be tested by determining whether any of the factual deficiencies do exist and, if so, if that existence is fatal to plaintiff's case. It is not the function of this court to determine whether plaintiff's case may be deficient in particulars not claimed by the appealing defendants.

The determination of whether a submissible case was made requires that the evidence be considered in the light most favorable to the plaintiff and plaintiff is to be given the benefit of all favorable inferences that reasonably may be drawn from such evidence. Epple v. Western Auto Supply Co., 548 S.W.2d 535, 538(1) (Mo. banc 1977).

"A combination for the purpose of causing a breach of contract has been held to be an unlawful conspiracy. A person who by conspiring with another or by collusive agreement with him assists him to violate his contract with a third person and to obtain the benefit of that contract for himself commits an actionable wrong." Rosen v. Alside, Inc., supra, 248 S.W.2d at 643(4). "(A) conspiracy usually is susceptible of no other proof than that of circumstantial evidence, and therefore it is a well-settled rule that proof by direct and positive evidence is not necessary, and that circumstantial evidence, that is, evidence of the acts of the alleged conspirators and of the circumstances surrounding the transaction which is the basis of the charge, is admissible to prove the conspiracy charged." State v. Bland, 354 Mo. 495, 190 S.W.2d 234, 237(2) (banc 1945).

Referring to the grant of an exclusive listing to a real estate broker the Kansas City Court of Appeals, in Byers Bros. Real Estate & Ins. Agency, Inc. v. Campbell, 329 S.W.2d 393, 396-397 (Mo.App.1959), said: "When the owner of the property is bound by a contract of the nature before us (and) conspires with a second broker, who knows that there is a contract of that nature in effect, to contract for the sale of that property within the contract agency time of the first broker and to conceal that fact from the first broker in order to deprive him of the commission to which he is entitled by withholding from him the fact that such sale has been agreed to and in pursuance thereof they carry out their conspiracy, the result is an actionable conspiracy and both the owner and the second broker are liable for the resulting damages." ¹ See also 34 A.L.R.3d 720 (Liability of real estate broker for interference with contract between vendor and another real estate broker).

By the terms of the listing agreement of February 16, entered into by plaintiff and defendants Noble, the Nobles granted to plaintiff, for a period of three months ending May 15, the exclusive right to sell the farm. The sale price was listed as $142,000 and plaintiff was to receive 10 percent of the sale price as his commission. The agreement called for payment of the commission "if a buyer is found during the time this agreement is in force, or the said property shall be sold to or exchanged with any person procured by (plaintiff) or by (the Nobles) or by any other person, or if the property is sold to anyone to whom the said property was submitted by (plaintiff) within three months from the termination date hereof."

Plaintiff informed other realtors, including defendant Welch, that the listing agreement of February 16 had been entered into. The record supports the inference that the information was imparted to Welch on or shortly after February 16.

On May 10 Jacob Tanis and his wife Sally, then residents of New Jersey, were interested in buying a farm in Missouri. They drove by the Noble farm, located near Ava, Missouri, and it aroused their interest. They went to Welch's real estate office in Ava and asked Welch if the Noble farm was for sale. Welch said he thought it was and that he would "run up and see if it was listed and for how much." Welch and another realtor, John Montgomery, ² drove out to the farm while the Tanises waited at the office.

Defendant James Noble testified that he told Welch that the farm was listed with another broker. Noble said, "Welch asked me who that broker was and I did not tell him. I said I would rather not say." Noble testified that he told Welch that he did not think he would sell the farm and "would not take any less than $160,000."

Welch and Montgomery returned to Welch's office. Welch informed the Tanises that they could not see the Noble farm because it had an exclusive listing and that it was listed for $160,000. Sally Tanis asked Welch for the name of the other realtor. Welch told her that "the man was hard to work with" and did not divulge plaintiff's name. Montgomery drove the Tanises to Springfield. The Tanises then went to North Missouri where they looked at some farms.

On May 13 the Tanises returned to Springfield and telephoned Montgomery, who lived there. They informed Montgomery they wanted to see the Noble farm. It is a reasonable inference that Montgomery relayed this information to Welch because defendant Betty Noble testified that Welch telephoned her and obtained permission to bring the Tanises to the farm that day.

Montgomery drove the Tanises to Welch's office at Ava and met Welch. Welch told the Tanises, before taking them to the farm, that he could show the farm to them but that there was "no way possible to close it up on that date." Welch also told the Tanises that if someone "should happen to come around" while they were looking at the farm, "just tell them we (the Tanises) were interested in renting the small house in back." Welch told the Tanises "not to say nothing to nobody."

Montgomery's car was used to transport the Tanises, Welch and Montgomery to the farm. The reason Montgomery's car was used, rather than Welch's pickup, was that the pickup "had Welch's name on the side of it" and Welch "said he did not want his pickup on the farm because of the exclusive listing."

After the party of four arrived at the farm the Tanises, with the permission of the Nobles, inspected the farm and its improvements. While they were doing so, a car drove into the driveway. At that time Welch said, "My goose is cooked now," and Mrs. Noble told the Tanises, "Say you are looking at the small house to rent." The driver of the car was merely seeking directions and the car left without further incident.

After inspecting the farm the Tanises returned to Welch's office and Welch told them of the terms of the purchase, including the price of $160,000. Tanis informed Welch that "I agreed to buy the farm on May 13" and offered Welch a...