Wendt v. Holbrook-Blackwelder Real Estate Trust Co.

• Decision Date: 04 October 1927
• Docket Number: No. 19767.,19767.
• Citation: 299 S.W. 66
• Parties: WENDT v. HOLBROOK-BLACKWELDER REAL ESTATE TRUST CO. et al.
• Court: Missouri Court of Appeals

299 S.W. 66

WENDT v. HOLBROOK-BLACKWELDER REAL ESTATE TRUST CO. et al.

No. 19767.

St. Louis Court of Appeals, Missouri.

October 4, 1927.

Rehearing Denied October 25, 1927.

Appeal from St. Louis Circuit Court; Anthony F. Ittner, Judge.

"Not to be officially published."

Action by Fred J. Wendt against the Holbrook-Blackwelder Real Estate Trust Company and another. From a judgment for plaintiff, named defendant appeals. Affirmed.

Banister, Leonard, Sibley & McRoberts, of St. Louis, for appellant.

Mark D. Eagleton, John F. Clancy, Fred Berthold, and Harry S. Rooks, all of St. Louis, for respondent.

SUTTON, C.

This is an action to recover damages for personal injuries sustained by plaintiff in a collision between an automobile in which he was riding and a Stutz touring car driven by defendant James A. Houchin. The trial, with a jury, resulted in a verdict in favor of plaintiff against both defendants for $2,500. The defendant Holbrook-Blackwelder Real Estate Trust Company appeals.

The collision occurred on Washington avenue just east of Sarah street in the city of St. Louis. That the facts were sufficient to warrant a finding that the collision resulted from the negligence of defendant Houchin appears not to be questioned.

The only questions involved here are as to whether or not the relation existing between the defendants was such that defendant Holbrook-Blackwelder Real Estate Trust Company may be held liable for the negligence of defendant Houchin under the rule of respondeat superior, and the rulings of the court on the instructions relative to that issue. Some time in June, 1923, at which time and for a long time prior thereto defendant Holbrook-Blackwelder Real Estate Trust Company was a real estate broker engaged in buying, selling, renting, and leasing real estate on commission in the city of St. Louis, the defendants entered into a written contract, whereby it was agreed between them as follows:

"(1) The trust company hereby employs said Houchin to be manager of the down-town rental department to be established by said trust company as herein provided.

"(2) The down-town rental department shall cover and include the negotiating of all leases on any business property in the city of St. Louis, Mo., as far west as Kingshighway. It is intended hereby that W. J. Holbrook, president of said trust company, shall from time to time furnish to said Houchin information concerning business enterprises and prospective tenants for business properties including 99 year leases, and when the same are so furnished to him, said Houchin obligates and binds himself to use his best efforts to consummate the business in question. * * *

"(3) The trust company shall provide the necessary office help for said down-town rental department, provided that if extra help over the present office force is required to carry on said department, then the cost of such extra help shall be charged to said department.

"(4) Said Houchin hereby accepts said employment and agrees to devote to said business as manager of said down-town rental department all of his time and energies during reasonable business hours.

"(5) Said Houchin shall, subject in each case to the approval of said W. J. Holbrook, employ such agents and solicitors as may be necessary to solicit business for and properly conduct said down-town rental department, provided that no such agent or solicitor shall be paid any compensation other than such part of the commissions received by the said trust company in any transaction negotiated by such agent or solicitor, as may be agreed upon between such agent or solicitor and the trust company and such compensation or commission so to be paid to any such agent or solicitor shall in no case exceed 50 per cent. of the commission received by the trust company in any such transaction so negotiated by such agent or solicitor.

"(6) Said Houchin agrees to keep in the office of the trust company permanent records of all the transactions of said rental department, all of which records and the books containing the same shall belong to the trust company.

"(7) In full payment for all services rendered by said Houchin hereunder, he agrees to accept a sum equal to one-half of all net income from said down-town rental department; such compensation shall be paid to said Houchin as the same is paid or received, due regard being had to the reservation from time to time of whatever sum may be required to pay any expenses connected with said rental department. By net income is meant such part of the income of said rental department as remains after the payment of the expenses of said department, including commissions paid to other agents and solicitors. The earnings of said department arising from rental deals within the part of St. Louis covered by this agreement which are consummated in conjunction or connection with other real estate agents shall belong to said down-town rental department and be divided as herein provided as to other earnings of said department.

"(8) This agreement shall not cover any rental from leases or tenancies now in force in either of the following buildings, to wit: Pennsylvania building, Syndicate Trust, and Century buildings (under special management), or the Rice-Stix building, but any commissions which may be paid to said trust company on account of any leases made or tenants secured after the date of this agreement for either or any of said buildings shall be considered under this contract.

"(9) Either party to this agreement may terminate the same at any time by giving to the other party not less than ninety (90) days' notice in writing of such intention to terminate the same; such notice shall be given personally, if practicable, if not, then by letter sent through the United States mail, postage prepaid, addressed to the other party at the last known address of such other party.

"(10) The rate of commission to be charged in all rental transactions had hereunder shall be subject to the approval of the trust company. In no event shall more than fifty (50%) per cent, of the commission received in any transaction hereunder be paid to a subagent or subagents. All money earned hereunder shall be paid to the trust company and be disbursed by it.

"(11) In case while said Houchin is employed under this agreement he shall negotiate any loan or loans or make any sale or sales of real estate or of any business enterprise or stock of merchandise, the commissions therefrom shall be paid to the trust company and shall be placed to the credit of said down-town rental department, and said Houchin shall be credited with one-half of the net commission derived therefrom. But no subagent or solicitor employed in said down-town rental department shall engage in the making of loans or sales of either real or personal property of any kind, but this section shall apply only to loans or sales made personally by said Houchin as the time of subagents and solicitors should be devoted exclusively to the rental business.

"(12) Upon the termination of this agreement a final settlement shall be made between the parties hereto; but all books, accounts and records of said two departments shall belong to and remain in possession of the trust company.

"(13) The trust company shall expend such reasonable sums in advertising properties and leases for said down-town rental department as shall be approved by said W. J. Holbrook.

"(14) As part of the consideration moving the trust company to enter into this agreement, the said Houchin hereby covenants and agrees that he will not for a period of six months after the termination of his employment under this agreement, either for himself or in association with, or employment of, any other person, persons or corporation, whomsoever, in the city or county of St. Louis, Mo., engage in the same line of business as that in which he will be engaged hereunder, or in any kindred line of business."

It is contended by the defendant Holbrook-Blackwelder Real Estate Trust Company that at the time of the accident which resulted in plaintiff's injury, defendant Houchin was engaged in work provided for under the provisions of section 11 of the contract, and that as to such work defendant Houchin was an independent contractor, and that therefore the defendant Holbrook-Blackwelder Real Estate Trust Company is not liable for his tortious acts while engaged in such work....