Warren v. Fritsch

• Decision Date: 11 February 1929
• Docket Number: No. 16294.,16294.
• Citation: 14 S.W.2d 29
• Parties: WARREN v. FRITSCH.
• Court: Missouri Court of Appeals

14 S.W.2d 29

WARREN v. FRITSCH.

No. 16294.

Kansas City Court of Appeals. Missouri.

February 11, 1929.

Appeal from Circuit Court, Gasconade County; R. A. Breuer, Judge.

"Not to be officially published."

Action by John Warren against John F. Fritsch. Judgment for plaintiff, and defendant appeals. Affirmed.

Jesse H. Schaper, of Washington, Mo., and L. G. Graf, of Hermann, for appellant.

Joseph T. Tate, of Owensville, and James Booth, of Pacific, for respondent.

BARNETT, C.

This was a suit brought by a broker to recover a commission. The petition alleged that defendant entered into an oral agreement with plaintiff whereby plaintiff was to endeavor to sell or trade for defendant a certain hotel property. Plaintiff's commission was to be $500 "in case" he secured a purchaser for the property for $8,500 or more, and $200 "in case" he secured a purchaser for such property for less than $8,500. The petition alleged that plaintiff secured a purchaser and a trade was consummated whereby defendant and his wife conveyed the hotel property to the purchaser, and whereby the purchaser, Caroline S. Lockhart and her husband, George Lockhart, conveyed a farm to the defendant and his wife at the price of $15,000; that defendant and his wife paid Caroline S. Lockhart the sum of $5,000; and that defendant thus realized the sum of $10,000 for his hotel property. It was alleged in the petition that "it was the work and efforts of plaintiff that brought about the trade" and that plaintiff was thereby entitled to the sum of $500.

Plaintiff testified that he leased defendant's hotel in August, 1923. Concerning the contract of employment, the plaintiff testified as follows:

"He told me that he wanted to sell the hotel and that if I would get him a trade or buyer, and he would realize $8,500.00, he would give me $500.00, and if he taken any less I wouldn't get but $200.00; I told him I would try and sell the hotel for him or trade it, either way, and he said he would trade it for a good farm, and that I could lease the hotel and pay him $50.00 a month, and I did so. I took possession on the 25th of August."

Plaintiff further testified that he talked to several parties about trading or selling the hotel and finally "struck" Mr. George Lockhart and notified defendant of that fact. He testified that Dr. Wood first got in touch with Mr. Lockhart. Concerning the manner in which the plaintiff first got in contact with the purchaser, he testified as follows:

"Q. Did you have any arrangements with Dr. Wood of Owensville, Missouri, about selling this property? A. He was the one that told me that Lockhart was in the market for a trade, and asked me where to find Fritsch. I told him I had Fritsch's end of it.

"Q. The fact of the matter is this, your connection with this case and with this property was through Dr. Wood, wasn't it, to be a helper to him? A. I and Dr. Wood was working together; yes, sir.

"Q. What arrangement was there between you and Dr. Wood about dividing the commission and selling the property? A. We didn't have any agreement. Dr. Wood asked me about Mr. Fritsch's address and about the property. I told him what Mr. Fritsch had told me and offered me. He said, `We will try to get them together.' I told Dr. Wood Mr. Fritsch was to give me $500.00 if we sold it for $8,500.00.

"Q. Did you tell Mr. Fritsch you and Dr. Wood were working together? A. No, sir.

"Q. Did you tell Mr. Lockhart about it? A. No, sir.

"Q. Dr. Wood was the man that was working on Lockhart to get him to make this trade? A. Yes, sir; he had Lockhart's place listed.

"Q. Dr. Wood was the man that was really working on Mr. and Mrs. Lockhart to make this trade, and you were the silent man working with Wood to work up that end? A. I was working with Mr. Fritsch's end.

"Q. Did you tell Mr. Fritsch about it, that you were working through Dr. Wood? A. I told Mr. Fritsch about the trade.

"Q. What did you tell him? A. I told him that we could make the trade I thought with Mr. Lockhart, down at the hotel, about a month or three weeks before Mr. Fritsch sold this property Lockhart. On that occasion I told him that he could trade and that Lockhart was going to take the $5,000.00, and that I had been working on Lockhart to buy this property or trade it.

"Q. Dr. Wood asked you for Mr. Fritsch's address? A. No, sir, I went up to Dr. Wood, and he discovered this trade, and he asked me where Mr. Fritsch was, and I told him he was in Jefferson City. He got him through me at that time. He was talking about hunting a trade for Lockhart."

Plaintiff further testified that he talked to Mr. Lockhart a couple times about the trade and that he showed him through the hotel, showing him "what belonged to the hotel and everything that was there, the bedding and the beds and whatever furniture was there, dishes," etc.

The plaintiff's evidence indicates that Dr. Wood also wrote to the defendant, giving him the name of the prospective purchaser. Later on, the plaintiff got word from Dr. Wood to have the defendant at the hotel and he would bring Mr. Lockhart. This was done. Before this, the defendant after receiving word that Mr. Lockhart was a prospective purchaser, had been dealing directly with Lockhart and avoiding contact with both plaintiff and Dr. Wood. When the final meeting was arranged, the defendant finally agreed to trade the hotel for Mr. Lockhart's farm and to pay $5,000 in cash. The farm was traded at an agreed value of $15,000 and the hotel at an agreed value of $10,000. However, Mr. Lockhart insisted that, if he made such a trade, he must have immediate possession of the hotel, because Mr. Lockhart thought he ought to have more rent than the plaintiff was paying. The lease at that time had about 11 months more to run. Defendant told plaintiff he would pay him $500 and that would be worth more than the lease, and asked plaintiff to give up the lease, which the plaintiff did. The trade was consummated, but defendant failed to pay plaintiff the promised commission.

The case was tried before the court sitting as a jury. No finding of fact was requested and the only declaration of law requested was a peremptory declaration that under the pleadings and the evidence the plaintiff could not recover. The trial court entered judgment for plaintiff for $500. A motion for new trial was filed and overruled, and defendant appealed. The only assignment of error in this court is that the court erred in not giving the peremptory declaration of law in the nature of a demurrer to the evidence. This is based upon two grounds. First, it is claimed that the evidence does not show that plaintiff was the procuring cause of the trade. Second, it is claimed that the petition alleges one contract and recovery was had upon another.

Opinion.

When a suit at law is tried before the court sitting as a jury, a declaration of law in the nature of a demurrer to the evidence should be refused, if there is any substantial evidence which will support a judgment upon any theory embraced within the pleadings. Saucer v. Kremer, 297 Mo. 461, 249 S. W. 640; Grams v. Novinger (Mo. App.) 231 S. W. 265.

Furthermore, if the court has...