Talbot v. The J. V. Brinkman Company Bank

• Decision Date: 29 June 1925
• Citation: 274 S.W. 501,220 Mo.App. 493
• Parties: L. J. TALBOT AND FRED WALKER, RESPONDENTS, v. THE J. V. BRINKMAN COMPANY BANK AND J. GEORGE BRINKMAN, APPELLANTS
• Court: Kansas Court of Appeals

274 S.W. 501

220 Mo.App. 493

L. J. TALBOT AND FRED WALKER, RESPONDENTS, v. THE J. V. BRINKMAN COMPANY BANK AND J. GEORGE BRINKMAN, APPELLANTS

Court of Appeals of Missouri, Kansas City

June 29, 1925

Appeal from Circuit Court of Jackson County.--Hon. A. C. Southern Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Lathrop Morrow, Fox & Moore for appellants.

Watson Gage & Ess for respondents.

ARNOLD, J. Bland, J., concurs; Trimble, P. J., absent.

OPINION

ARNOLD, J.

This is an action to recover a real estate commission.The case was tried before the court without the aid of a jury, resulting in a judgment in favor of plaintiffs in the sum of $ 2882.43, and defendants have appealed.After submission of the case to this court the death of plaintiffL. J. Talbot was suggested and the cause was ordered to proceed in the name of the surviving partner, Fred Walker.

The facts show that defendants owned a ranch in Osage county, Kansas, and employed plaintiff, Fred Walker, to sell or exchange it.Afterwards Walker entered into negotiations with a Mrs. Lantry, owner of the Peristyle Apartments in Kansas City, Missouri, for the trade of the ranch for her property.Plaintiff Talbot had an office with one Lipscomb with whom the apartments were listed for trade.Mr. Lipscomb had told Talbot that if he ran across anyone to whom he could trade the apartment that he would divide his commission with him.Walker made his headquarters in Kansas City at the office of Lipscomb and Talbot.In general talk at the office Walker told Talbot about the ranch.Walker afterwards told defendants about the apartments and defendants directed Walker to "go ahead and see what you can do about it."There was nothing said about compensation at that time nor was Talbot's name mentioned.Later, after talking to Talbot about the trade, Walker again talked with defendants and mentioned then for the first time the subject of commission and told them that "Mr. Lipscomb, . . . was to get a $ 2500 commission on his part, and I had to pay Mr. Talbot a part of my commission, and I would expect the same and that was agreed on."Lipscomb had agreed to pay Talbot one-third of his commission and Walker agreed to pay Talbot a like portion of his commission if the trade was negotiated.Defendants inspected the apartments in company with Talbot and Walker, Talbot doing much toward effecting the trade, and finally the trade was consummated.

In regard to Walker's agreement with Talbot as to the commission, in addition to what we have already quoted from his testimony, Walker testified that--"Q.Juststate whether or not you told him (the defendant Brinkman, who was acting for himself and defendant bank) any thing about Mr. Talbot's connection with it (the trade) except as you have testified heretofore. . . .A.Well, he told me to go ahead and make the deal.Q.Had you advised him or told him anything about Mr. Talbot receiving any part of the commission?A.Yes, he was to get a third from me, of twenty-five hundred dollars that I was to get."

Further testifying Walker stated that in a conversation with Brinkman, the latter told him that "he would pay $ 2500, the same as the other side, and I told him I had another man on the deal that got part of this money.I told him at same time it was Mr. Talbot.""I told him the other side was getting $ 2500, and we would expect on our side, I and the other man that was with me, the same amount, and he said that was all right."Walker further testified that he may not have told Brinkman what proportion of his commission Talbot was to receive but that he did tell Brinkman that Talbot was to get a part of his commission and also a part of Lipscomb's.He further testified that when the trade was consummated "Mr. Brinkman asked myself and Mr. Talbot if we would cut down ours to that ($ 2000, the figure that Lipscomb had cut his to), which we did."

Talbot testified that Lipscomb told him in the presence of Walker, "If you will help me get this deal through, I will pay you a part of my commission, and I said how will it be with you, Mr. Walker, your people?He says, I will do the same.You shall have a part of the commission. . . .Q.Did he say what part?A.I was to have a third.Q.Of the commission that was paid . . . A. (interrupting): To Mr. Walker."

He further testified: "I never had any conversation with Mr. Brinkman or anybody connected with the Brinkman bank in regard to the commission.I don't think I ever told Mr Brinkman that I expected any commission.When I am dealing with another agent I don't go to his principal and find out so and so.I do not know that I ever told Mr. Brinkman or anyone connected with the bank that I was obtaining a portion of the commission from the other side.I don't remember anything of the kind.I was not present when the deal was closed at Woodlea.It must have been a month after that before I saw Mr. Brinkman.I then asked him when he was going to pay...