Staples v. O'Reilly
| Decision Date | 26 March 1956 |
| Docket Number | No. 7395,7395 |
| Citation | 288 S.W.2d 670 |
| Parties | Opal STAPLES, Plaintiff-Respondent, v. Leland S. O'REILLY and Elsie O'Reilly, Defendants-Appellants. |
| Court | Missouri Court of Appeals |
Ward & Reeves, Caruthersville, for defendants-appellants.
C. A. Powell, Dexter, for plaintiff-respondent.
In this court-tried case, defendants appeal from the judgment for plaintiff (a) on her petition for $2,900 principal, $215.49 interest and $311.55 attorney's fee on a promissory note (hereinafter referred to as the Godfrey note) executed by defendants, (b) on defendants' counterclaim, in which defendants sought to recover $2,209.86, the amount of a check issued by them in payment of another promissory note in the principal sum of $2,900 (hereinafter referred to as the $2,900 Oliver note) executed by defendants, and (c) on defendants' 'petition for equitable relief and declaratory judgment,' in which defendants sought cancellation of three promissory notes in the principal sum of $553.33 each (hereinafter referred to as the three $553.33 Oliver notes), likewise executed by defendants.
In answer to plaintiff's petition on the Godfrey note, defendants pleaded that they had executed that note 'as a part of a real estate sale transaction entered into with the plaintiff on December 15, 1952'; that the Godfrey note was, in fact, 'a real estate sales commission for services rendered in said real estate transaction' by plaintiff's agent-husband, George Staples, Jr. (hereinafter referred to as George), who, being an unlicensed real estate broker [Section 339.010], 'could not lawfully charge or collect a real estate sales commission' [Sections 339.020 and 339.160]; and that, therefore, the Godfrey note was 'null and void for want of consideration.' (All statutory references herein are to RSMo 1949, V.A.M.S.)
In their counterclaim, defendants averred that the $2,900 Oliver note and the three $553.33 Oliver notes (hereinafter collectively referred to as the four Oliver notes) 'represented real estate sales commissions' to plaintiff 'to be deducted from the purchase price' of a 456-acre farm which defendants contracted to purchase from Dearmont and Margaret Oliver; and, that the four Oliver notes were 'null and void' for want of consideration or for failure of consideration because neither plaintiff nor George was at the time a licensed real estate broker or salesman [Sections 339.010, 339.020 and 339.160] and because the Oliver transaction was not consummated and no commission was earned. Defendants also alleged that they had executed the $2,900 Oliver note 'with the understanding that said note was to be cancelled and returned to * * * defendants upon the delivery by them or for or on their behalf of one new Pontiac automobile to the plaintiff * * * or upon the payment of a sum of money equal to the dealer's cost of said automobile'; that, on February 4, 1953, defendant Leland S. O'Reilly (hereinafter sometimes referred to as O'Reilly) delivered to plaintiff's agent-husband, George, a check for $2,209.86 payable to the order of Jarvis Motor Company at Sikeston, Missouri, 'which amount represented the dealer's cost of one Pontiac automobile'; and, that said check was, by George, delivered to and accepted by Jarvis 'for the use and benefit of the said plaintiff and as the consideration for the cancellation * * * of the said $2,900 (Oliver) note,' which (with the Godfrey note) had been pledged by George with Jarvis. Defendants further pleaded (in their amended answer but not in their counterclaim) that O'Reilly instructed George 'to apply the ($2,209.86) check in payment of' the Godfrey note but that George 'fraudulently tendered and applied said check in payment of' the $2,900 Oliver note or payment of that note 'was the result of a mutual mistake' on the part of George and O'Reilly.
We first refer to the evidence bearing upon the Godfrey note, on which plaintiff sued. By a written 'Offer to Buy Real Estate' dated November 20, 1952, plaintiff's husband, George, offered to purchase a farm in Mississippi County, Missouri, from Ernest M. Godfrey for $20,000, of which $500 was deposited with the offer. Upon the written acceptance of Godfrey, this instrument became a valid contract 1 which, by its terms, obligated Godfrey to sell and George to purchase the farm therein described. On December 15, 1952, plaintiff entered into a written contract with defendants to sell the Godfrey farm to them for $25,000. On a subsequent date (not fixed in the record but prior to February 4, 1953) this farm was conveyed by Godfrey directly to defendants, and all of the agreed purchase price was paid by defendants excepting only the $2,900 evidenced by the Godfrey note. Upon this state of facts, we are unable to find, as defendants would have us do, that plaintiff's action on the Godfrey note is within the statutory prohibition of Section 339.160. 2 For, in our view of the matter, the Godfrey note did not represent 'compensation for services rendered in * * * buying, selling (or) exchanging * * * real estate' [Section 339.160] but rather was a portion of the purchase price of the Godfrey farm payable by defendants to plaintiff under the firm contract by which plaintiff (not Godfrey) was obligated to convey that tract. Furthermore, upon trial, O'Reilly significantly commented concerning the Godfrey note, 'that was the note I owed.' We are of the opinion that the judgment for plaintiff on her petition bottomed on the Godfrey note should be affirmed.
In their counterclaim, defendants seek to recover from plaintiff $2,209.86, the amount of a check issued by defendants to Jarvis Motor Company of Sikeston on February 4, 1953, representing 'the dealer's cost' of a new Pontiac automobile. On December 13, 1952, Dearmont and Margaret Oliver entered into a written contract with defendants (hereinafter referred to as the Oliver contract), whereby the Olivers agreed to sell their 456-acre farm in Stoddard County, Missouri, to defendants for $91,200 to be paid as follows: $20,000 by conveyance to the Olivers of a tract owned by defendants (hereinafter referred to as defendants' garage property), on which they operated the Hi-Way Motor Company, the then Pontiac agency in Charleston; $41,000 by defendants' assumption of a loan secured by deed of trust covering the 456-acre Oliver farm; $25,640 by notes to be 'dated the day of the closing of this transaction'; and, in the language of the Oliver contract----
Although not required so to do by the Oliver contract, defendants admittedly executed (under circumstances not reflected in the transcript) on December 13, 1952, the date of execution of the Oliver contract, the four Oliver notes payable to plaintiff's order in the aggregate amount of $4,560, all of which were post-dated to February 2, 1953, the date on or before which warranty deeds to the 456-acre Oliver farm and defendants' garage property were to have been exchanged. One of these post-dated notes, i. e., the $2,900 Oliver note, represented the list price of a new Pontiac automobile. The other three notes, i. e., the three $553.33 Oliver notes, represented 'the difference between said list price * * * and $4,560.' Notwithstanding the fact that the commission of $4,560 was, by the Oliver contract, to be paid to plaintiff, it is clear that her husband, George, acted as broker and that the four Oliver notes reflected the broker's commission claimed to have been earned by him, not by plaintiff.
Although there was nothing in the notes to that effect, O'Reilly said that he had an 'understanding' with George that defendants were to deliver a new Pontiac automobile for each of the two $2,900 notes, i. e., the Godfrey note and the $2,900 Oliver note, and George's testimony tended to confirm such 'understanding.' Defendants had been allotted two new Pontiac automobiles for January, 1953; but, after they sold their agency at Charleston on January 17, 1953, some arrangement (not shown in the record) was made for those two automobiles to be sent to Jarvis at Sikeston. On February 4, 1953, O'Reilly and George went to Sikeston. They agreed upon trial that the purpose of this trip was to 'pay' one of the two $2,900 notes, both of which George had pledged with Jarvis on January 29, 1953, as security for a loan; but, O'Reilly and George were in violent disagreement as to what occurred at Sikeston.
O'Reilly's version was that, when he and George drove into the driveway at Jarvis' place of business during the morning of February 4th, O'Reilly handed George a check for $2,209.86 payable to Jarvis Motor Company; that George said 'You wait here'--'I'll go in and get you the Godfrey note'; that O'Reilly then got into an automobile owned by George's brother, which he (O'Reilly) was to drive back to Charleston, and 'started to warm it up'; that, observing 'a friend of mine (Harry Richey) across the street there * * * I motioned him over and we sat there nearly ten minutes talking,' until O'Reilly saw George coming out of Jarvis' place of business, when O'Reilly 'jumped out of the car' and met George 'about half-way between the car and (Jarvis') office'; and that, when George handed him an instrument with the comment 'here is your Godfrey note,' O'Reilly 'glanced at it and seen the $2,900' but 'it wasn't marked paid,' so he inquired, 'are you going...
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