Vigeant v. Fidelity Nat. Bank & Trust Co.

• Citation: 158 S.W.2d 184,236 Mo.App. 774
• Parties: GREGORY VIGEANT, APPELLANT, v. FIDELITY NATIONAL BANK & TRUST COMPANY, A CORPORATION, RESPONDENT
• Decision Date: 01 December 1941
• Court: Court of Appeals of Kansas

158 S.W.2d 184

236 Mo.App. 774

GREGORY VIGEANT, APPELLANT, v. FIDELITY NATIONAL BANK & TRUST COMPANY, A CORPORATION, RESPONDENT

Court of Appeals of Missouri, Kansas City

December 1, 1941

Appeal from Circuit Court of Jackson County.--Hon. Albert A. Ridge Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Oscar S. Hill and Ira B. Burns for appellant.

(1) The court erred in the giving of Instruction "A" in the nature of a demurrer to the evidence and in refusing to set aside the involuntary nonsuit upon motion of the appellant. Adair v. Kansas City Terminal R. R. Co. et al., 282 Mo. 133, 220 S.W. 925-926. (a) The court erred in refusing to admit the testimony of C. O. Jones as to his relations and agreements and understandings with Mr. F. W. Coen and Mr. A O. Thompson prior to the time of the sale of the real estate in question to Mr. Coen embraced in the offers of proof found at pages 38, 41, 44, 56, 58, 64 and 71 of the abstract for the reason that they were competent as tending to prove procuring cause and competent as a part of the res gestae. Glade v. Eastern Illinois Mining Co., 129 Mo.App 443, 107 S.W. 1002; Smith v. Lyons Salt Co. (Mo. App.), 177 S.W. 1058; Henry v. Sneed, 99 Mo. 407, 12 S.W. 663; Friedman Bros. v. Holberg, 74 Mo.App. 26; Royle Mining Co. v. Fidelity & Cas. Co. of N. Y., 161 Mo.App. 185, 142 S.W. 443; Lyons v. Corder, 253 Mo. 539, 162 S.W. 606; Knight v. Donnelly, 131 Mo.App. 152, 110 S.W. 687; Gate City Natl. Bank v. Boyer, 161 Mo.App. 143, 142 S.W. 487. (b) The court erred in striking out the following statement of Mr. Jones on page 74 of the abstract, "And I talked to Mr. Thompson and he agreed to put up one-half of the purchase price." See cases cited under (a). (c) The court erred in not considering the evidence admitted, admissions of respondent and the competent evidence rejected in determining the right of the appellant to have his case submitted to a jury. Park v. Culver, 169 Mo.App. 11, 154 S.W. 806; Studt v. Leiweke (Mo. App.), 100 S.W.2d 30; Mack v. Mohler (Mo. App.), 52 S.W.2d 188; Corder v. O'Neill, 176 Mo. 438, 75 S.W. 774; Meredith v. Martin (Mo. App.), 9 S.W.2d 860; Jennings v. Overholt, 186 Mo.App. 505, 172 S.W. 449; Glassman v. Fainberg (Mo. App.), 35 S.W.2d 950; Newberry v. Const. Co., 180 Mo.App. 672, 163 S.W. 570; Lehmann v. Hartford Fire Ins. Co., 183 Mo. 196, 167 S.W. 1048; Lochmann v. Brown (Mo. App.), 20 S.W.2d 564; January v. Harrison (Mo.), 199 S.W. 935; Zimmerman v. Schwerzler (Mo. App.), 35 S.W.2d 381; Mason v. James M. Carpenter Realty Co., 179 S.W. 945.

Bowersock, Fizzell & Rhodes and Harding, Murphy & Tucker for respondent.

(1) The court committed no error in the giving of Instruction "A" in the nature of a demurrer to the evidence and in refusing to set aside the involuntary nonsuit upon motion of appellant. Low v. Paddock (Mo. App.), 220 S.W. 969; Meredith v. Martin (Mo. App.), 9 S.W.2d 860; Williams v. Mashburn (Mo. App.), 37 S.W.2d 478; Mack v. Mohler (Mo. App.), 52 S.W.2d 188; Long v. Towl, 42 Mo. 545, 550; Corbyn v. Brokmeyer, 84 Mo.App. 649, 653; Baker v. Assurance Co., 57 Mo.App. 559, 563; Sec. 1228, R. S. Mo. 1939. (a) The court committed no error in refusing to admit the testimony of C. O. Jones as to his relations, agreements and understanding with W. F. Coen and A. O. Thompson prior to the sale of the real estate in question to Mr. Coen embraced in the offers of proof found at pages 38, 41, 44, 56, 58, 64 and 71 of the abstract. Low v. Paddock (Mo. App.), 220 S.W. 969; Sec. 1228, R. S. Mo. 1939. (b) The court committed no error in striking out the statement of Mr. Jones on page 74 of the abstract, "And I talked to Mr. Thompson and he agreed to put up one-half of the purchase price." Low v. Paddock (Mo. App.), 220 S.W. 969; Sec. 1228, R. S. Mo. 1939; Brunk v. Ry. Co. (Mo. App.), 200 S.W. 443. (c) The court committed no error in not considering the evidence admitted, admissions of respondent and evidence rejected in determining the right of the appellant to have his case submitted to a jury. Sec. 1228, R. S. Mo. 1939.

SPERRY, C. Boyer, C., concurs.

OPINION

SPERRY, C.

Plaintiff, Gregory Vigeant, sued defendant, Fidelity National Bank and Trust Company, for commission claimed to be due him for the sale of real estate owned by defendant. Plaintiff took an involuntary nonsuit and appeals from the order of the court overruling his motion to set the nonsuit aside.

Prior to May 12, 1927, defendant was the owner of certain real estate located in Kansas City, Missouri, known as "The Walnuts," and employed plaintiff to sell same at a price of $ 150,000. It agreed to pay him a commission of 10 per cent on the first $ 10,000 of the sale price, and 3 per cent on all sums above that.

Plaintiff contacted one C. O. Jones, a building contractor, interested him in the purchase of the property, and procured Mr. Jones to submit an offer of $ 150,000; but the offer was one of trade rather than of cash and it was rejected by defendant. On May 4, 1927, plaintiff submitted to defendant a "time" proposition of purchase on behalf of Jones, in the amount of $ 150,000, and defendant indicated that it would be favorably considered. On May 6th, defendant informed plaintiff that it had received an offer of $ 135,000, cash for the property and plaintiff then and there told defendant that Jones and one Coen were jointly interested in the purchase of the property and that the above offer was made by Coen but was, in fact, the joint offer of Coen and Jones, and that one A. O. Thompson was also jointly interested with Jones and Coen in said offer to purchase. The reference to Thompson was stricken from the evidence on the grounds that plaintiff had received information as to Thompson's interest from Thompson, who was dead at the time of the trial. Defendant, at that time, agreed to pay plaintiff commission on any sale made to Coen if it was proved that Coen was, in fact, acting in connection with Jones in the purchase of the property.

Thereafter, on May 11, 1927, defendant invited plaintiff to come to its office. Plaintiff and his attorney there met Mr. Coen and defendant's president, Mr. Hall. The latter informed plaintiff, in Coen's presence, that: "We are about to make a deal on the Walnuts. Your commission will be $ 2100." Plaintiff, again in the presence of Coen, told Mr. Hall that Coen and Jones were acting jointly in the purchase of the property. Coen said nothing during this conversation. Upon advice of counsel plaintiff refused the $ 2100 offer and later sued for $ 4250, which he claims is due him.

Plaintiff testified that he, at no time, talked with Mr. Coen about the purchase of the property and that he did not discuss the matter with Thompson until after the sale to Coen was consummated. He also admitted that he testified, in a deposition which was in evidence, that Jones had told him that he, Jones, had invited Coen to come in with him on the purchase of the property and that Jones thought that Coen had "double crossed" him and gone to the bank to buy direct

Plaintiff called C. O. Jones as a witness and the latter gave testimony to the effect that he had submitted an offer through plaintiff, for the purchase of the property, and that said offer was not accepted; that at the time defendant actually sold the property to Coen he, Jones, had no interest of "any kind" in said property. Jones testified that he had talked to Coen, prior to the latter's purchase of the property, with a view to a joint purchase by witness and Coen. Plaintiff's counsel sought to question Jones, while he was on the witness stand, concerning his interest in the sale of the property to Coen; but such testimony was excluded on objection, on the grounds that questions along that line amounted to an effort on the part of plaintiff to cross-examine his own witness. Jones testified that he was and is a contractor and builder; that Coen was and is engaged in selling building materials; and that Thompson was, at the time the sale was made, engaged in the lumber business.

The following questions and answers appear in the record in connection with the testimony of Mr. Jones, to-wit:

"MR STRAYER: We expect that the evidence will prove and will show that Mr. Jones interested Coen in the property and that Mr. Jones interested Mr. Thompson in the property, expect the evidence to show that when the property was acquired Mr. Thompson paid part of the purchase price, and we expect to show that by Mr. Jones' answer that he had no interest in the property, he meant no legal interest, but that he had the interest of developing that property, which he later did, and that is a sufficient interest to support our contention that these men were jointly interested and that Gregory Vigeant was the procuring cause of the sale.

"Q. (By MR. STRAYER): Mr. Jones, did you talk to Mr. W. F. Coen at this time about this property? . . .

"Q. (By MR. HILL): Did you have any understanding with Mr. Coen about the purchase of this property before the sale was finally made? A. I thought so, yes, sir.

"Q. What was the plan or understanding you had with him?

"MR. TUCKER: Just a moment. A qualifying question.

"MR. HILL: Well now, just a minute. He has answered the question.

"THE COURT: For the purpose of an objection, ask him a question.

"MR. TUCKER: Did you have any written agreement of any kind with Mr. Coen relative to the acquisition of some interest in this real estate?

"MR. HILL: Object to that as immaterial, he didn't have to have any.

"THE COURT: Overruled.

"MR. TUCKER: Did you? A. Not at this time, no sir.

"MR TUCKER: Then we move that the previous answer be stricken out and the jury instructed to disregard it because any interest in real estate or any contract for an interest in real...