Westerman v. Peer Investment Company
| Decision Date | 08 May 1917 |
| Parties | HENRY WESTERMAN, Respondent, v. PEER INVESTMENT COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Eugene McQuillin Judge.
Judgment reversed.
Albert & H. N. Arnstein for appellant.
A broker whose contract provides that, in order to earn his commission, he must within a given time secure a purchaser of the land at a price fixed, is not entitled to commission even though within the contract time he found a purchaser willing and able to buy at a reduced price and that fact was communicated to the owner, and even though the owner after the expiration of the contract time, closed with the purchaser on such reduced terms. Young v. Stecker Cooperage Works, 259 Mo. 215; Jennings v Overholt, 186 Mo.App. 505; Wilson v. Rafter, 188 Mo.App. 356, 365; Hogan v. Slade, 98 Mo.App. 44; Page v. Griffin, 71 Mo.App. 524; LaForce v Washington University, 106 Mo.App. 517; Beauchamp v. Higgins, 20 Mo.App. 514; Mecham Agency, sec. 5965, p. 793; Blackwell v. Adams, 28 Mo.App. 61, 63; Fritz v. Werner, 34 Kan. 576, 580; Zemer v. Antiswell, 75 Cal. 509-512; Watson v. Brooks, 11 Ark. 271; 2 Clark & Sykes on Agency, sec. 778.
Buder & Buder and Eugene Buder for respondent.
(1) Where the owner sells property to his broker's customer, it is not essential to the broker's right to recover a reasonable commission that the sale be completed within the time or at the price fixed in the broker's contract, if the broker initiates the transaction within the time limited, and the owner subsequently sells the property to such customer. Cole v. Crump, 174 Mo.App. 215; Cole v. Marler, 174 Mo.App. 223; Goffe v. Gibson, 18 Mo.App. 1; Hughes v. Daniel, 187 Ala. 41; Griswold v. Pierce, 86 Ill.App. 406-408; Cleveland Cliff I. Co. v. Gamble, 201 F. 329; Williams v. Leslie, 111 Ind. 70; Ewan v. Power, 165 Ky. 806; Jaeger v. Glover, 89 Minn. 490; Cody v. Dempsey, 83 N.Y.S. 899; O'Connor v. Semple, 57 Wis. 243; 9 Corpus Juris, page 608, note 90. (2) When the broker is the procuring cause of the sale, and the property is sold by the owner at a lower price than authorized in the broker's contract, the owner is liable for the broker's commissions. Burdett v. Parish, 185 Mo.App. 605; Lane v. Cunningham, 171 Mo.App. 17; Weisels-Gerhart R. E. Co. v. Epstein, 157 Mo.App. 101; Hamilton v. Hathaway, 152 Mo.App. 483; Hovey and Brown v. Aaron, 133 Mo.App. 573; Glade v. Eastern Ill. Mining Co., 129 Mo.App. 443; Holland v. Vinson, 124 Mo.App. 417; 9 Corpus Juris, page 601, note 56; Stinde v. Blesch, 42 Mo.App. 578. (3) Where the agent is the procuring cause of the negotiations which are concluded by the owner, he is entitled to compensation for his services. Bell v. Kaiser, 50 Mo. 150; Tyler v. Parr, 52 Mo.App. 249; Timberman v. Craddock, 70 Mo. 638; Beauchamp v. Higgins, 20 Mo.App. 514; Jones v. Barry, 37 Mo.App. 125; Stinde v. Blesch, 42 Mo.App. 578; Bass v. Jacobs, 63 Mo.App. 393; Lipscomb v. Cole, 81 Mo.App. 53; Crone v. Miss. Valley Trust Co., 85 Mo.App. 601; Cunliff v. Hausman, 97 Mo.App. 467; McCormack v. Henderson, 100 Mo.App. 647; Gelatt v. Ridge, 117 Mo.App. 560; Sallee v. McMurray, 113 Mo.App. 264; Lane v. Cunningham, 171 Mo.App. 17; Perry v. Edelen, 181 Mo.App. 498. (4) Whether plaintiff was the procuring cause of the sale was properly left to the jury. Lane v. Cunningham, 171 Mo.App. 17; Weisels-Gerhart R. E. Co. v. Epstein, 157 Mo.App. 101; Cole v. Crump, 174 Mo.App. 215, 221; Perry v. Edelen, 181 Mo.App. 498, 507-8.
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 and 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:
Jefferson and Easton Ave., City.
(It is conceded that this letter refers to the same property.)
In reply plaintiff received the following letter from defendant, viz:
1001 Chestnut Street, City.
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's 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 of the property to him for $ 50,000. In this connection the bank's president (defendant's vice-president) testified:
It is earnestly insisted that the trial court erred in refusing to peremptorily direct a verdict for appellant--defendant below and we regard it as quite clear that appellant is correct in this contention. Plaintiff was not entitled to a commission unless he made a sale of the property within the terms...
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