Westerman v. Peer Inv. Co.

• Decision Date: 08 May 1917
• Docket Number: No. 14488.,14488.
• Citation: 195 S.W. 78,197 Mo. App. 278
• Parties: WESTERMAN v. PEER INV. CO.
• Court: Missouri Court of Appeals

195 S.W. 78

197 Mo. App. 278

WESTERMAN v. PEER INV. CO.

No. 14488.

St. Louis Court of Appeals. Missouri.

May 8, 1917.

Rehearing Denied May 29, 1917.

Appeal from St. Louis Circuit Court; Eugene McQuillen, Judge.

Action by Henry Westerman against the Peer Investment Company. Judgment for plaintiff, and defendant appeals. Reversed.

Arnstein & Arnstein, of St. Louis, for appellant. Buder & Buder and Eugene Buder, all of St. Louis, for respondent.

ALLEN, J.

This is an action to recover the sum of $500 alleged to be due plaintiff as a broker's commission for his services in negotiating a sale of real property belonging to defendant. The suit was begun before a justice of the peace, where defendant prevailed. Upon plaintiff's appeal to the circuit court and a trial de novo before the court and a jury there was a verdict and judgment for plaintiff, and the case is here on defendant's appeal.

Plaintiff is a real estate broker. Defendant is a corporation controlled by the Jefferson Bank, a banking institution in the city of St. Louis, and is referred to as a "holding company" for the bank. The real estate involved is situated at Sixteenth and Morgan streets, in the city of St. Louis, and in 1911, and to the end of March or the beginning of April, 1912, it was owned by one Katzen and one Gram, who owned and operated the "Gram & Glass Cap Company," the bank holding a mortgage or mortgages on the property as security for a loan or loans to the owners thereof. In the summer of 1911 it is said, Katzen authorized plaintiff to negotiate a sale of the property, suggesting to him that he negotiate with one R. E. Funsten, who owned adjoining property occupied by the "Funsten Dried Fruit & Nut Company." Plaintiff testified that he made fruitless efforts to sell the property to Funsten, though the latter's testimony is that these dealings were with his son, who died prior to the trial below. It appears that both the owners of the property and the officers and directors of the bank realized that it would be necessary for the bank to look to the property to make itself whole; and Gram testified that he told the directors of the bank that he "had a good chance" to sell the property to Funsten for $55,000, though it does not appear that any officer or director of defendant or of the bank knew anything concerning plaintiff's connection with the property during this period. And the evidence is that in October or November, 1911, defendant's president, being also vice president of the bank, together with the president and second vice president of the bank, called upon Funsten and sought to make a sale of the property to him; that they asked $55,000 therefor, but Funsten refused to purchase at that price, saying that he "might consider" buying it at $45,000. This "offer" was not accepted. It seems that it was necessary to effectuate a sale at something more than $53,000 in order to prevent a loss to the bank. Matters stood thus, so far as appears, until the latter part of March or the early part of April, 1912, when the said former owners deeded the property to the defendant, the Peer Investment Company, for the bank. Shortly thereafter plaintiff called upon the directors of the bank for the purpose of obtaining authority to negotiate a sale of the property, and as a result of this interview he wrote the following letter:

                            "St. Louis, Mo., April 9, 1912
                

"Jefferson Bank, Jefferson and Easton Ave., City — Gentlemen: Referring to property N. E. corner Jefferson avenue (sic) and Morgan street, I would like to ask the gentlemen of your board of directors again to authorize me to sell said property at a price agreeable to your institution and when such satisfactory price cannot be obtained within ten days, such agreement shall be null and void. For my services I will charge only half of the usual commission, or 1¼% on such price as agreed to by your board of directors.

                  "Awaiting an early reply, I am
                    "Respectfully yours, Henry Westerman."
                

It is conceded that this letter refers to the same property. In reply plaintiff received the following letter from defendant, viz.:

                            "St. Louis, Mo., April 11, 1912
                

"Mr. Henry Westerman, 1001 Chestnut Street, City — Dear Sir: We hereby authorize you to sell the property at the N. E. corner of Sixteenth and Morgan streets, for the sum of $53,000, terms to suit, you to receive for your services after the title changes hands the sum of $500.00. This agreement will hold good until the 20th day of April, 1912.

                    "Yours truly
                        "Peer Investment Company
                            "Per W. H. Hesse, President."
                

Defendant's president testified (without objection) that plaintiff stated that he wanted only three days in which to make a sale, but that, at the witness' suggestion, it was agreed to allow him ten days, the "matter" to be "off," and plaintiff to have no claim against defendant unless he should consummate a sale within such time.

Plaintiff did not make a sale of the property. According to his testimony, he again called on Funsten and ascertained that the latter would pay $50,000 for the property, but no more, and reported this to the bank's directors. Defendant's evidence, however, tends to show that plaintiff did not report to the bank's directors; and Funsten's testimony is that he declined to deal with plaintiff. In any event the time limited in the contract elapsed without the consummation of a sale by plaintiff, or the production by him of a purchaser at the price named; and a few days thereafter officers and directors of defendant again took the matter up with Funsten, resulting in a sale...