Suburban Realty Co. v. Sturgeon

• Decision Date: 02 June 1969
• Docket Number: No. 25053,25053
• Citation: 443 S.W.2d 7
• Parties: SUBURBAN REALTY COMPANY, Inc., Appellant, v. James STURGEON, Respondent.
• Court: Missouri Court of Appeals

Page 7

443 S.W.2d 7

SUBURBAN REALTY COMPANY, Inc., Appellant, v. James STURGEON, Respondent.

No. 25053.

Kansas City Court of Appeals, Missouri.

June 2, 1969.

Eugene C. Kane, W. Raleigh Gough, Kansas City, for appellant.

Harvey Burrus, Rufus Burrus, Independence, for respondent.

HOWARD, Presiding Judge.

This is a suit for a real estate commission on the sale of a house and four acres of land located on Blue River Road in Kansas City, Jackson County, Missouri. Trial to the court without a jury resulted in judgment for the defendant. We shall refer to the parties as they appeared below. The suit was originally brought against respondent James Sturgeon and his wife, but the undisputed evidence at the trial was that the wife was then dead. Therefore, we shall refer to Mr. Sturgeon as the sole respondent. We shall attempt to relate the facts in chronological order.

The appellant real estate company employed and agent by the name of Mrs. Rider who, on September 20, 1962, secured an exclusive listing of defendant's property for sale. By its terms, this listing was to be exclusive for 60 days and the defendant was obligated to pay a commission to plaintiff if sale was made within 60 days after the exclusive listing expired to any person with whom the plaintiff negotiated and whose name was disclosed to defendant during the term of the agreement.

From September 24, 1962 to and including November 11, 1962, the plaintiff displayed 'For Sale' signs on the premises and advertised the premises for sale in the Kansas City Star and other area papers. On November 11, 1962, one Lester W. Odle appeared at the Sturgeon home having been by a different real estate agent. The defendant sent Odle to the plaintiff explaining that plaintiff had an exclusive listing. Mrs. Rider, for plaintiff, showed the property to Odle that day. On the next day Odle and his wife signed an offer to purchase the property for a price of $16,000.00 to be paid $500.00 with the offer, $2,000.00 on delivery of the deed and the balance of $13,500.00 to be the proceeds of a loan on the property to be purchased. In the middle of the printed form of offer, the following appears in the handwriting of Mrs. Rider: 'Buyer agrees to apply and qualify for a conventional loan in the amount of $13,500 for 20 years at 6%. Buyer requests a period of time in which to complete this transaction, not to exceed six months.'

On the same day, November 12, 1962, the offer was accepted by Mr. Sturgeon and his wife. On the following day, November 13, 1962, a 'Missouri Real Estate Sale Contract' was prepared containing the same terms as the offer above described. It acknowledged receipt of the $500.00 and the provisions written in longhand in the offer as above quoted, were typed in this contract. This contract was signed by Mr. and Mrs. Odle and Mr. and Mrs. Sturgeon on November 13, 1962.

In fact, Mr. Odle did not pay $500.00 on the signing of the contract and did not give a check therefor. Instead, he gave plaintiff a promissory note in the amount of $500.00 due 6 months after date with no interest. Mr. Olde was indefinite as to exactly when this note was given. Mrs. Rider testified that it was given at the time of the contract. However, the note which is in evidence bears the date of November 17, 1962. This note recites that it is secured by cash surrender value of an insurance policy issued by the Kansas City Life Insurance Company. It appears that two insurance policies with an aggregate cash value in excess of $500.00 were, in fact, turned over to the plaintiff Suburban Realty. However, they were not assigned and later Mr. Odle secured the issuance of duplicate replacement policies therefor. The plaintiff did not at any time attempt to surrender or cash the insurance policies it held. This note was not negotiated and has not been paid.

Mrs. Rider testified that she explained the matter of the taking of the note to Mr. Sturgeon at the time the contract was approved by him and his wife. However, Mr. Sturgeon testified that when Mrs. Rider brought Odle's offer to him on November 12, 1962, she told him that she had received a $500.00 check from Odle but forgot to bring it with her. She offered to go back to the office and get the check. She told Sturgeon that the check was not the same as cash but that they would know if it was good when they put it through the bank. Mr. Sturgeon further testified that no mention of the $500.00 payment was made on November 13, 1962, when the sale contract was approved by him and his wife. He testified that he was told about the note instead of cash 'later in the spring' long after she (Mrs. Rider) had said she had a check. Mr. Sturgeon testified that he never saw the note before he appeared in court.

Mrs. Rider testified (by deposition, having left the employment of plaintiff and moved away from Kansas City) that the note was given by Odle instead on cash or a check because he had a buyer for some timberland in southern Missouri and would have to wait a few weeks for the cash. He did not want to take the money out of his savings account with Home Savings Association.

Mr. Odle testified that he did not sign the offer to purchase but that his wife signed both his name and her name to the offer; that he refused to sign the offer until he was assured that the plaintiff would sell his house in Kansas City North for enough money to enable him to purchase the Sturgeon house with a $13,500.00 loan. He testified that plaintiff's employees appraised his house and assured him that they could sell it for him at the price of $15,200.00. He testified that Mrs. Rider wanted 90 days to complete the deal and that he wanted 6 months to sell his house and secure the loan on the Sturgeon house. He stated that when he signed the contract to purchase it was on the basis of two contingencies: (1) that he could secure a loan of 13,500.00 on the Sturgeon house, and (2) that plaintiff would sell his house for $15,200.00. He testified that Mrs. Rider knew of these contingencies and that he was not able to buy the Sturgeon house without both. Odle listed his house for sale with plaintiff contemporaneously with signing the contract to buy the Sturgeon property.

Mr. Sturgeon testified that when the offer (and the sale contract) was submitted to him, he objected to waiting 6 months to close the deal and Mrs. Rider told him that Odle could qualify for the loan within a week or ten days or he could forget about it and it would not take long to sell Odle's property, so he would not be required to tie up his property for 6 months. She said that Odle wanted time to sell his other property to be able to buy the Sturgeon property.

After the contract was signed by the parties it was sent to plaintiff's main office where inquiry was made to 6 or 7 lending agencies in an attempt to secure a loan for Odle in the amount of $13,500.00. Some notes on scraps of paper were introduced in evidence and from these one Barbara Warren, an employee of plaintiff, testified that she contacted First Federal Savings and Loan Association on November 20, 1962, and they refused to make a loan on the property. Contact was also made with Sentinel Savings and Loan, Metropolitan Savings and Loan, and others who refused the loan. On November 21, 1962, she contacted Groves Brothers who would only make a loan in the amount of $10,000.00. The notes indicate that Capitol Federal was contacted on November 21, 1962 but she testified the contact was January 9, 1963. In any event, an application was made to Home Savings and Loan Association for a loan of $13,500.00 on January 10, 1963. Barbara Warren accompanied Odle to Home Savings on that date to make this application.

In this connection, Mr. Sturgeon testified that about a month and a half after the contract was signed (this would be late in December, 196i or early in January, 1963), he called Mrs. Rider to inquire about the sale of his property and was told that Odle could not get the $13,500.00 loan and that this was holding up the consummation of the sale. Mrs. Sturgeon then contacted Home Savings and they reported that they were then making loans. She relayed this message to Mrs. Rider who 'got hold of someone' and they took Mr. Odle to Home Savings to make application for the loan. This was done on January 10, 1963, and on January 22, 1963, the records of Home Savings indicate that a loan in the amount of only $11,500.00 was approved. The Home Savings file does not contain a copy of the contract of November 13, 1962.

Mr. Sturgeon testified that Mrs. Rider advised him that the most Home savings would loan was $11,500.00; that they would not make the $13,500.00 loan. In response to this, Mr. Sturgeon offered to carry a $2,000.00 second mortgage and thereafter, Mrs. Rider reported to Mr. Sturgeon that Odle had signed the papers for a first mortgage loan of $11,500.00 and for the second mortgage loan from Mr. Sturgeon in the amount of $2,000.00. She advised that all that Mr. Sturgeon had to do was wait for the 6 month time to expire and close the deal.

It appears that plaintiff, its agents and employees, did nothing further to consummate this sale. Mr. Sturgeon testified that the plaintiff never produced the proceeds from the $11,500.00 loan or the papers for the $2,000.00 second mortgage he had offered to carry.

Early in May, 1963 (approximately the end of the 6 month period mentioned in the sale contract), Mr. Sturgeon called the plaintiff and talked to the elder Mr. Kuhn, who was president of plaintiff. Mr. Sturgeon was advised that his house was not sold, the which he replied that he would come down and get his half of the $500.00 earnest money, the receipt of which was acknowledged in the contract of sale. Mr. Sturgeon was advised that plaintiff did not have $500.00 and never had had it and 'that was it.'

Mr. Sturgeon then for the first time called Mr. Odle to inquire where the earnest money was and Mr. Odle explained. He also advised...