Windsor v. International Life Ins. Co.

• Decision Date: 03 July 1930
• Docket Number: 28881,28882
• Citation: 29 S.W.2d 1112,325 Mo. 772
• Parties: Edward H. Windsor v. International Life Insurance Company, Appellant
• Court: Missouri Supreme Court

29 S.W.2d 1112

325 Mo. 772

Edward H. Windsor v. International Life Insurance Company, Appellant

Nos. 28881, 28882

Supreme Court of Missouri

July 3, 1930

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

Reversed.

Jourdan & English and David W. Hill for appellant.

(1) A broker is not entitled to commission in the absence of a contract, express or implied. The record is devoid of evidence showing such a contract. Delahunt v Thuener, 317 Mo. 465; Ballentine & Boone v Mercer, 130 Mo.App. 605; Welch v. Collenbaugh, 150 Iowa 692; Pipkin v. Horne (Tex.), 68 S.W. 1000; Summa v. Dereskiawicz, 82 Conn. 547; Benedict v. Pell, 74 N.Y.S. 1085; McKeon v. Tyler (Mass.), 149 N.E. 615; Toumlin v. Miller, 58 L. T. 96, 3 T. L. R. 836; Moody v. Kettle (Can.), 11 Dom. L. R. 844. (2) To entitle a real estate broker to a commission, it is not sufficient that the act of the broker was one of a chain of causes bringing about the transaction, but the broker's act or acts must have been the producing cause; and the burden is upon him to show, not only that he opened negotiations with the purchaser, but that the sale was actually effected through his means, and not by the intervention of new parties or upon different terms. The evidence utterly fails to make a case for plaintiff under the foregoing rule. Leonard v. Dougherty, 221 Mo.App. 1056; Schwabe v. Estes, 202 Mo.App. 372; Rawlings v. Waddill, 206 Mo.App. 555; Sprague v. Seever, 185 Mo.App. 318; Gamble v. Grether, 108 Mo.App. 340; Meredith v. Martin (Mo. App.), 9 S.W.2d 860; Bassford v. West, 124 Mo.App. 248; Duncan v. Hills, 155 Mo.App. 702; Tucker v. Duckworth, 107 Mo.App. 231. (3) Plaintiff's own evidence shows that he was acting as agent for Claude E. Vrooman and the St. Regis Realty and Investment Company, from whom he collected a commission for his services. He made no claim that he ever, at any time, notified either of the parties to the transaction that he was assuming to act for both of them, nor did he testify that he secured their consent to such dual agency. Under such circumstances the law will not imply that he was acting as agent for appellant, for such employment would be against public policy. Corder v. O'Neill, 207 Mo. 632; Atlee v. Fink, 75 Mo. 100; Leonard v. Dougherty, 221 Mo.App. 1056; De Steiger v. Hollington, 17 Mo.App. 382; Downing v. Buck, 135 Mich. 636; City etc. Co. v. Stahl (Fla.), 106 So. 78. (4) Any recovery by plaintiff is precluded by his failure to show that the alleged contract upon which he bases his suit was entered into in the manner required by the governing statutes. Secs. 6138, 6318, R. S. 1919.

W. B. and Ford W. Thompson, A. C. Britt and Jesse W. Barrett for respondent.

(1) We cite the following cases in support of plaintiff's right to go to the jury in this case -- cases that involve the law where a broker, or middleman, is plaintiff: Nooning v. Miller, 178 Mo.App. 299; Park v. Culver, 169 Mo.App. 10; Weidemeyer v. Woodrum, 168 Mo.App. 716; Tyler v. Parr, 52 Mo. 249; Lane v. Cunningham, 171 Mo.App. 17; Klein v. Terminal Railroad Assn., 268 S.W. 664; Timberman v. Craddock, 70 Mo. 638; Grether v. McCormick, 79 Mo.App. 325; Harwood v. Diemer, 41 Mo.App. 48; Henderson v. Mace, 64 Mo.App. 397; Blackwell v. Adams, 28 Mo.App. 63; Stinde v. Blesch, 42 Mo.App. 581; Bass v. Jacobs, 63 Mo.App. 396; Cole v. Crump, 174 Mo.App. 215; Weisels-Gerhart R. E. Co. v. Epstein, 157 Mo.App. 101. (2) Secs. 6138 and 6318, R. S. 1919, will not protect one who retains the fruits and benefits of an executed contract. The statutes do not render "void" such contracts. Thompson on Corporations (3 Ed.) 716, sec. 2082; Thornton v. Natl. Bank, 71 Mo. 221; 1 Williston on Contracts, 522, sec. 271; Delzell v. Fidelity & Casualty Co., 176 Mo. 255; Blodgett v. Koenig, 284 S.W. 507; Cole v. Armour, 154 Mo. 333; Busse v. White, 302 Mo. 672.

Davis, C. Henwood and Cooley, CC., concur.

OPINION

DAVIS

This is an action to recover for services rendered as a real estate broker. The petition averred employment and an agreement to pay for procuring a party ready, able and willing to trade an apartment house for farm property of defendant. The jury returned a verdict for $ 8,800 in plaintiff's favor. Defendant appealed. Plaintiff also appealed, and contends that the judgment, in view of the finding for plaintiff, should have been for $ 87,500, non obstante veredicto.

The evidence adduced on behalf of plaintiff warrants the finding that defendant, in 1924, was a life insurance company, operating in the city of St. Louis, and that it was the owner of farm lands located in various states. Plaintiff was engaged at said time in the city of St. Louis in the real estate business. From 1921 to 1923 he was a real estate salesman for an operator. Then he went into business for himself as a real estate broker. A. H. Carter, in 1924, was treasurer of defendant. About April 1, 1924, plaintiff went to Carter's office with a letter of introduction to him from a Mr. Cady of Pine Bluff, Arkansas, which he left with Carter. The letter was the result of plaintiff answering a blind newspaper advertisement. Upon presentation of the letter, Carter said he knew Cady. Plaintiff then informed Carter that he was the man that had been offering Mr. Cady the Gay, a business building in the city of St. Louis. Carter replied that he knew this building and would not be interested. Carter then said that he had a number of farms scattered over different states, Missouri, Arkansas, Mississippi and Illinois, and he wanted to trade them. About three days later, plaintiff again visited Carter and submitted to him a parcel of property located at Palm and Grand avenues in the city of St. Louis. In answer to questions, plaintiff relates the conversation as to the Grand and Palm property thus: "A. He said it was a business building; he wasn't interested in it. He said he had it, was asked to make a loan, he knew it very well, but, he said, 'What we want and would like to have you get some one for us, would be high class apartment property; that's what we are interested in.' . . . He said, 'That's not the kind of property we want. We want high class apartment property.' He said, 'If you will get some one that has high class apartment property, that's the kind of property we are hunting for,' he said, 'for our farm lands.' . . . He just said that he had them (farm lands) scattered over several states." Plaintiff answered, "All right, sir, I will see what I can do."

A few days later Frank Vrooman came to plaintiff's office. Plaintiff then saw Claude E. Vrooman about May 7th, and on May 9th plaintiff took Claude Vrooman to Carter's office and introduced him as the man who had the apartment house property to trade for his farm lands. Vrooman had stated to plaintiff that he was willing to trade apartment property for farm lands. They discussed the farm lands in general, but plaintiff could not say exactly what was said. About May 11th, Claude Vrooman furnished to plaintiff a statement relative to the Jeffersonian Apartment, which was submitted to Carter. Carter, accompanied by Frank Vrooman, visited and inspected the Jeffersonian building. Carter told plaintiff that he was not interested in the Jeffersonian. A few days later, plaintiff submitted a statement with respect to the Mauretania Apartment building. On May 27th plaintiff and Claude Vrooman went to Carter's office. The Mauretania Apartment was under discussion. They also discussed farm land in the Little River Drainage District. Vrooman said he was interested in it. They said it was very high class. Vrooman, Carter, plaintiff and Barton, a land appraiser for defendant, were present. Concerning a trip that Vrooman, Barton and others were to make to that district, plaintiff said: "They were going down to look over some land down there which I really don't think belonged to the International." About ten days later plaintiff saw Claude Vrooman, who said they had a pretty bad trip, rainy and muddy. About June 10th or 11th, plaintiff again met Vrooman, who said that it looked like they were going to make a deal on the St. Regis. (The St. Regis was an apartment building owned by a corporation in which Claude Vrooman was a large stockholder.) He later saw Carter who said that the deal was coming on nicely, but slowly. Later plaintiff learned through the papers that defendant had traded its farm properties for the St. Regis Apartments.

On cross-examination, plaintiff stated that he went to Carter's office without an invitation, and that he was not acquainted with Carter prior to April 1st. Plaintiff did not show Carter the St. Regis Apartments. He said that he did not have the St. Regis or defendant's farm lands listed for sale or exchange. He never knew the defendant's farms or their description. He never informed Carter that defendant owed him money, and never submitted a bill to Carter or defendant for services rendered prior to the filing of the suit. After the exchange of the properties, he met Carter on the street, but did not then state to Carter that defendant owed him anything. This suit was the first intimation to the defendant that plaintiff claimed anything for services. Plaintiff said that he was at that time the agent of the St. Regis Realty & Investment Company in attempting to sell its properties; that he was the broker. Plaintiff filed suit against defendant, St. Regis Realty & Investment Company and Claude E. Vrooman, but dismissed the action against the corporation and Vrooman upon receiving from them $ 1,000 in settlement of his claim. He did not take lists of the farms and show them to Vrooman, but he took the lists of Vrooman.

The deposition of Carter was offered by plaintiff on the theory of an admission by defendant. It tends to...