South Side Realty Co. v. Hamblin

• Decision Date: 07 December 1964
• Docket Number: No. 24116,24116
• Citation: 387 S.W.2d 224
• Parties: SOUTH SIDE REALTY CO., Inc., Respondent, v. Robert L. HAMBLIN, Appellant.
• Court: Missouri Court of Appeals

Page 224

387 S.W.2d 224

SOUTH SIDE REALTY CO., Inc., Respondent, v. Robert L. HAMBLIN, Appellant.

No. 24116.

Kansas City Court of Appeals, Missouri.

Dec. 7, 1964 Motion for Rehearing or Transfer to Supreme Court Denied Feb. 1, 1965.

Rufus Burrus, Independence, for appellant.

Thomas J. Daly, Linde, Thomson, VanDyke, Fairchild & Langworthy, Kansas City, for respondent.

CROSS, Judge.

In this jury waived case the trial court found that plaintiff was entitled to recover of defendant the sum of $1137.00 as real estate sales commissions and entered judgment accordingly. Defendant appeals.

Plaintiff South Side Realty, Inc. prosecutes this action as the successor of Mrs. Billie E. Mills, a licensed real estate broker who formerly was engaged in business as an individual under the name 'South Side Realty Company'. Mrs. Mills is president, treasurer, manager and principal stockholder of plaintiff corporation. According to Mrs. Mills' testimony, when the corporation was formed in May, 1952, 'We took the assets, including the office fixtures and all assets of the company, which was South Side Realty Company, and transferred them to the corporation'. In particular, she assigned to the corporation all her right in a certain contract which is the subject matter of this action.

Defendant is a real estate subdivider, builder and developer. In the year 1952, while Mrs. Mills was doing business under the name 'South Side Realty Company', and prior to the formation of plaintiff corporation, she owned ten large lots in Blue Ridge Ranch Estates, a subdivision in Jackson County, Missouri. On February 25, 1951, she and defendant entered into a written undertaking entitled 'Real Estate Contract' whereby she agreed to sell and convey her ten building lots to defendant for the price of $5,400.00. It was additionally provided in the written agreement as follows:

'It is agreed and understood between buyer, builder and seller that South Side Realty Company, 4060 Troost Avenue, is to have exclusive sale right until sold on each and every house built on above lots'.

With reference to the foregoing quoted contract provision, plaintiff pleads in its petition that 'As part of the consideration for Billie E. Mills' promise to convey the said lots, the defendant gave to Billie E. Mills the exclusive sale right, until sold, on each and every of the said lots on which the defendant should build a house. Commission due to Billie E. Mills on the sale of said lots was to be five (5) per cent'.

Mrs. Mills testified that the lots were reasonably worth considerably more than the contract price, but that 'the price of the lots was lowered in order to give the buyer, who was the builder, an advantage in outlay of cash. The difference was taken into consideration and was discussed at the time is why our exclusive sale right was put in there'.

Pursuant to the written agreement defendant duly acquired title to the ten lots and proceeded to construct houses upon them--'two or three houses at a time'. He built a total of ten houses--one on each lot.

Mrs. Mills testified that as soon as the first houses were completed she started advertising and offering them for sale, holding them open on weekends and endeavoring to sell them. She sold five houses and received full five per cent commissions on those sales except in one instance where she divided a commission with another agent.

Sometime early in 1953, defendant authorized other real estate agents to sell the remaining five houses. Mrs. Mills learned in March, 1953, that the other agents were showing the properties. She testified that upon protest to defendant 'he said that we would get our commission'. Mrs. Mills continued to try to sell the houses 'with those other brokers on the scene'. She stated, 'We advertised them, we held them open, continued working on them'. Under those conditions the remaining five houses were sold by persons other than Mrs. Mills. She testified, 'One by one they were sold and he didn't pay us our commission and in May of '53 we protested to him regarding it. * * * He said that we would get our commissions when he got his money, when they were closed'.

Over objection by defendant, Mrs. Mills testified that the term 'exclusive sale right' as used in the written agreement, means, as a matter of custom, to the people engaged in the sale of real estate in the Kansas City area, that 'the firm that is given exclusive sale right is to receive a full commission on each and every house sold that it covers, regardless of who sells the house. If the owner was to sell the house, they are still obligated to pay the agent a commission. They have their advertising costs and other costs involved, and that's a protection'. She further testified that the customary commission being paid in February, 1952, was five per cent, that she discussed that figure with defendant, and that he knew she expected five per cent.

In his testimony defendant admits that Mrs. Mills sold 'some' of the houses he had built and that she was paid commissions on the ones she sold. He does not dispute her testimony relative to the number of sales she made or that her commissions were paid at the rate of five per cent.

While still engaged in building the houses, defendant communicated to her his 'dissatisfaction' with her efforts. According to defendant 'the houses weren't moving'. After informing her that he was going to give the houses to other realtors, he did in fact give such authority to other real estate agents, who sold the remaining five houses.

Relative to the meaning of the contract language 'exclusive right until sold', defendant admitted that it meant to him 'You would have to pay the commissions to the agent to whom you granted the exclusive right'. In answer to the question, 'How did she get into the picture of selling the houses at all?', defendant stated, 'It was some part, maybe of the transaction of the land, sir'. Defendant further testified that he never revoked Mrs. Mills' contract in writing and that he never told her he was revoking her contract. Defendant was unable to state in any particular what Mrs. Mills was not doing 'that was causing these houses not to be sold'. Other than the fact the houses were not being sold 'he knew nothing about the performance of Mrs. Mills out there'.

Relying on the written agreement, plaintiff filed this action within the ten-year period of limitation provided by Section 516.110 V.A.M.S. but beyond the five-year period provided by Section 516.120 V.A.M.S. It has been defendant's position that this action is subject to the five-year limitation statute and consequently barred. The question was first raised by defendant's timely motion to dismiss and has otherwise been preserved for review.

The trial court by its finding and judgment in plaintiff's favor has effectively ruled that the ten year statute applies. In his first two points, defendant charges the court with error in so ruling. Section 516.110 V.A.M.S. provides that certain actions shall be commenced within ten years, including 'an action upon any writing, whether sealed or unsealed, for the payment of money or property'. Section 516.120 V.A.M.S. prescribes the nature of actions that must be brought within five years, included among which are 'All actions upon contracts, obligations or liabilities, express or implied, except those mentioned in section 516.110 * * *;'.

In presenting this point, defendant quotes and relies upon the following interpretation given the ten-year statute in Lively v. Tabor, 341 Mo. 352, 107 S.W.2d 62, 111 A.L.R. 976:

'To come within the ten-year statute, 'it must appear * * * that the money sued for is promised to be paid by the language of the writing sued upon'; and 'unless the payment of the money sued for was promised by the terms of the writing, either in express language or by language which is tantamount or equivalent to such promise,' the ten-year statute does not apply. 'If a promise to pay the money sued for does not arise from the language of the writing itself,...