Whitlock v. Crowe

• Decision Date: 08 January 1926
• Docket Number: No. 3896.,3896.
• Citation: 278 S.W. 788
• Parties: WHITLOCK v. CROWE
• Court: Missouri Court of Appeals

278 S.W. 788

WHITLOCK v. CROWE

No. 3896.

Springfield Court of Appeals. Missouri.

January 8, 1926.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by W. P. Whitlock against J. W. Crowe. Judgment for plaintiff, and defendant appeals. Reversed.

Wright & Ruffin and Neale & Newman, all of Springfield, for appellant.

T. H. Gideon, of Springfield, for respondent.

COX, P. J.

Action upon a contract for $2,000 which, it is alleged, defendant agreed to pay plaintiff to find a buyer for land on which was a cave known as Percy Cave. A jury was waived and the cause tried before the court, who found for plaintiff and rendered judgment in his favor for $2,000. Defendant appealed.

At the close of plaintiff's evidence the defendant demurred thereto. This demurrer was overruled, and the first assignment of error is based on that action of the court. This suit is upon a specific contract and no recovery is sought upon quantum meruit. The material part of the petition is, in substance, as follows:

"That on or about the ____ day of April the defendant entered into an oral contract with the plaintiff to sell a certain tract of farm land known as the Percy Cave, property consisting of 116 acres of land located north of the city of Springfield, Mo., and specifically agreed to pay said plaintiff the sum of $2,000 in cash if he could effectuate a sale of said tract. That plaintiff on or about the same date offered said tract of land to the Realty Holding Company and secured an oral option on said tract of land from the defendant to the said Realty Holding Company upon terms agreeable to said defendant. That thereafter the said defendant consummated said sale to the said Realty Holding Company and conveyed said real estate. That the plaintiff had fully complied with all the terms and conditions of said contract with defendant and had demanded payment of the $2,000 that defendant had agreed to pay, and payment had been refused."

The answer was a general denial.

We must consider whether plaintiff made a case under his petition, for it is familiar law that a party must stand on the cause of action as alleged in his pleading. He cannot plead one cause of action and recover on another. Weil v. Posten, 77 Mo. 284, 287; McFarland Real Estate Co. v. Joseph Gerardi Hotel Co., 202 Mo. 597, 605, 100 S. W. 577; Henry County v. Citizens' Bank of Windsor, 208 Mo. 209, 225, 226, 106 S. W. 622, 14 L. R. A. (N. S.) 1052; St. Louis v. Klausmeier, 212 Mo. 724, 728, 111 S. W. 507; Otrich v. St. Louis, I. M. & S. R. R. Co., 154 Mo. App. 420, 437, 134 S. W. 665; Barnes v. Knott, 205 Mo. App. 399, 224 S. W. 1033; Williams v. Hall, 207 Mo. App. 432, 230 S. W. 126.

Plaintiff's petition declares upon a specific contract, by which it is alleged that defendant employed plaintiff to sell the real estate described and agreed to pay plaintiff therefor the sum of $2,000. Nothing is said in the petition about the price at which the property was to be sold. Plaintiff's case is bottomed upon the claim that the prise at which the land was to be sold did not enter into the contract between him and defendant. Plaintiff's testimony as to the terms of the contract between him and defendant is as follows:

"Mr. Crowe drove up in front of the store that morning and said, `Whitlock, have you got a buyer for my cave?' I said, `No, but I can get you one if you will tell me what you want for it.' He says, `All right.' He says, `I will pay a commission on it.' I said, `No, I won't consider any commission on this deal—no commission at all will be considered.' He said, `What will you take to get a buyer to sell it?' I said, `Just take $2,000.' I said, `What do you have to have for it?' He said, `I want $20,000 for my part.' I said, `That way, $22,000 is what you will have to have for the place.' He said, `Yes, that is what I will have to have, $22,000.' I said, `All right, we will have a buyer for it.'"

The defendant testified that the agreement was that he should have $20,000 and plaintiff must get his pay above that amount.

The court made and filed a finding of facts in which it was found that

"The defendant agreed with the plaintiff that if plaintiff would sell defendant's land known as the Percy Cave property for the sum of $22,000, the defendant would pay plaintiff or allow plaintiff $2,000 of said sum as plaintiff's compensation for making such sale."

This finding of the trial court means that the agreement between these parties was that in order for the plaintiff to earn the $2,000 he must find a purchaser for the property at the price of $22,000. We think the evidence was sufficient to sustain that finding and hence are bound by it and shall proceed upon that hypothesis in the further consideration of the case.

Since plaintiff did not prove that the contract was exactly as alleged in his petition, and the court who tried the facts found that plaintiff was not employed generally to sell the property and was to receive $2,000 for his services, but was employed in such a way that he was only to receive $2,000 for his services on condition that he find a purchaser at the price of $22,000, it might be contended, under the authorities above cited, that he had failed to prove his case as alleged, and when that fact was found by the court, judgment should have gone for defendant regardless of the other evidence in the case. That point, however, is not relied upon by appellant, and if it were, we would be inclined to hold that the variance did not amount to a total failure of proof.

The court further found that plaintiff would have been able to sell the property for $22,000 if defendant had not intervened and sold for a less price to the same parties with whom plaintiff was negotiating. If that finding of the court is sustained by substantial evidence, then we think the judgment should be affirmed notwithstanding the discrepancy between the allegations of the petition and the proof as to the terms of the contract of employment.

The evidence on the question of the ability of the plaintiff to have sold the property for $22,000, and defendant having, while negotiations were pending between plaintiff and the purchaser, intervened and sold the property at a less price to the same party, may be briefly summarized as follows: Plaintiff was a member of an organization in Springfield known as the Ku Klux Klan. The Klan was holding its meetings in some building in the city of Springfield, and plaintiff seems to have understood that the Klan desired to purchase a cave in which to hold its meetings. Why a cave was wanted is not disclosed. Whether it was because the Klan "loved darkness rather than light because its deeds were evil," or for some other reason, is not shown and is not material here. The defendant owned 116 acres of land on which what was known as "Percy Cave" was located. This cave has a large room in it that, it was thought, would be a good place in which to hold the meetings of the Klan. Plaintiff at a meeting of the Klan, informed its members of this cave and stated that it...