Zabol v. Lasky

• Decision Date: 12 September 1977
• Docket Number: No. 59998,59998
• Citation: 555 S.W.2d 299
• Parties: Paul ZABOL, Plaintiff-Respondent, v. Manuel LASKY, Defendant-Appellant.
• Court: Missouri Supreme Court

Page 299

555 S.W.2d 299

Paul ZABOL, Plaintiff-Respondent, v. Manuel LASKY, Defendant-Appellant.

No. 59998.

Supreme Court of Missouri, En Banc.

Sept. 12, 1977.

Roberts P. Elam, Clayton, for plaintiff-respondent.

Alan C. Kohn, St. Louis, for defendant-appellant.

FINCH, Judge.

Plaintiff sought by this action in quantum meruit to recover $210,500 as a broker's commission allegedly due for services rendered in connection with the sale of a building at 121 S. Meramec, Clayton, Missouri, to the Seven-Up Company. The case was submitted on the theory of a contract implied in law i.e., the rendition of beneficial services with respect to the sale of said building with the expectation of compensation and the acceptance of the beneficial services by defendant when he knew or should have known that compensation would be expected. ¹ There was a jury verdict for plaintiff in the sum of $60,206, and defendant appealed to the Missouri Court of Appeals, St. Louis District, which reversed. On application we ordered the case transferred, and we now decide it as though here on direct appeal. We reverse.

Defendant contends that plaintiff did not make a submissible case and that for this reason the trial court erred in denying his motion for a directed verdict at the close of all the evidence. He bases this contention on two grounds. In the first place, he says that there was not sufficient evidence from which a contract to pay for services in connection with sale of the building could be implied. Next, he asserts that the evidence was not sufficient to show that acts of plaintiff referable to ultimate sale of the building were the efficient or procuring cause of the sale. The court of appeals reversed on the basis of defendant's first contention, holding that the evidence established that plaintiff had been employed to lease space in the building, not to sell it, and that there was no evidence that he had performed any services for defendant in connection with sale of the building. For those reasons, the court of appeals concluded that no implied contract could be inferred to authorize a judgment in quantum meruit for services in connection with sale of the building and did not reach the second contention.

Plaintiff's application for transfer was predicated upon an apparent conflict between the court of appeals' decision and previous decisions of this court ² and other appellate courts regarding the sufficiency of evidence required to support a submission to the jury on a quantum meruit theory. However, after briefs and argument in this court, it became clear that in order to support his theory for recovery, the plaintiff, as a broker, was required to establish not only an implied contract to pay for his services but also that his acts with reference to the ultimate sale were the efficient or procuring cause thereof. We have concluded that even if we should hold that plaintiff did offer sufficient evidence from which the jury could infer a contract to pay the plaintiff if he produced a buyer rather than a lessee for the building, we would still be compelled to reverse the judgment on the basis that the plaintiff clearly failed to offer sufficient evidence from which the jury could infer that his acts were the ultimate or procuring cause of the sale under the standards long recognized in the appellate decisions of this state. It would therefore serve no useful purpose for us to decide the question of whether the evidence of services rendered was sufficient to make a submissible case for the jury on the existence of an implied contract, and we do not do so.

The record contains a great deal of inconsistent testimony concerning the existence of such an implied contract and, in view of our disposition, it would only add length and create confusion to attempt to relate all of the evidence relating to that difficult question in this opinion. Instead, only the facts essential to the determination of whether, even assuming an implied contract, the plaintiff was the procuring cause of the sale will be summarized.

In May 1963 defendant and his wife were in the process of constructing an office building for investment purposes in Clayton. The building was ten stories high, each floor containing approximately 10,000 square feet of rental space, and there were four floors below grade, each containing approximately 25,000 square feet of parking space. The exterior of the building was practically completed at that time, but the interior was unfinished and there were no tenants in the building.

Defendant Lasky began looking for someone to aid him in leasing space in the building. He met with plaintiff, a licensed real estate broker with several years experience, and orally contracted with him to take charge of the leasing operation. Plaintiff immediately moved from his downtown office to defendant's office next to the building under construction. He was to work practically full time and was to receive a guaranteed draw of $200 per week which was to be offset against commissions on each lease he obtained of 11/2 per cent of the gross amount of the lease, plus an override of 1/2 per cent on any lease obtained in conjunction with another employee of defendant. As explained by defendant, plaintiff's commission would be calculated by applying the percentage agreed upon to the number of square feet leased times the price per square foot times the length in years. This was less than the usual commission for such services but the arrangement contemplated that defendant, rather than plaintiff, was to pay for such expenses as advertising and producing brochures.

Plaintiff commenced work in May 1963. He and defendant worked together to plan a program after which plaintiff undertook to carry it out. Both attended a restaurant convention in Chicago where they attempted to generate an interest in establishing a restaurant on the top floor of the building. Plaintiff contacted various insurance companies and also undertook to contact all those listed in a Chamber of Commerce book which he and defendant thought would contain the firms which were likely prospects. Plaintiff first would make a telephone contact with the company and, if any interest was shown in renting space, he followed up with a letter and brochure. If that resulted in an expression of interest, he undertook to make appointments for personal visits. He kept a card record of those contacts where any interest was shown in leasing, listing the person contacted and the status of the effort as to such company.

One of the businesses contacted by the plaintiff was the Seven-Up Company. After various preliminary contacts there, he talked by telephone to Howard E. Ridgeway, executive vice-president and the then acting president of the company. Plaintiff testified that he explained that he wanted to talk to Ridgeway about the Seven-Up Company leasing the building and that an appointment was made for Mr. Ridgeway to look at the building on July 16, 1963. Mr. Ridgeway, in a deposition which plaintiff introduced, ³ testified that he told plaintiff when he called that Seven-Up was not interested in leasing but, when plaintiff insisted, he agreed to look at the building.

On July 16, 1963, Ridgeway met plaintiff and defendant and toured the unfinished building, climbing the stairs to the top floor to permit Ridgeway to see the view from that point. There is variance in the testimony as to what occurred at that point. Plaintiff testified that he had been talking to Ridgeway about leasing the building but that when they reached the top, Ridgeway indicated an interest in buying. Both plaintiff and defendant responded that the building had been erected as an investment and that defendant was interested only in leasing, not selling. Contrary to what plaintiff stated, Ridgeway testified that a sale or offer to purchase was not discussed at the meeting on July 16. Defendant also testified that he did not remember any discussion of a sale at that meeting; but in testifying about a second meeting a few weeks later at Ridgeway's office, he stated that Ridgeway "again asked me whether my building was for sale," thereby indicating that there had at sometime been a prior conversation about a possible sale.

The parties agreed that at the July 16 meeting various possible leasing plans involving different portions of the building were proposed. At the end, it was decided that plaintiff would prepare and submit on behalf of the defendant various written proposals to Ridgeway. These were delivered to him by plaintiff and defendant on August 6, 1963.

There also is conflicting testimony regarding what transpired at the August 6, 1963, meeting of plaintiff, defendant and Ridgeway at the latter's office. Plaintiff testified that Ridgeway indicated that he was leaning toward purchase but that he would not rule out the possibility of leasing and would take it up with the powers that should be consulted within the company. Plaintiff further testified that the question of a sale of the building was discussed at the meeting but that the defendant said he was not interested in selling and only wanted to lease the building.

Ridgeway testified that a discussion on leasing took place at the August 6 meeting but that he reiterated that Seven-Up was not interested in leasing. He described his response as an outright rejection of the lease proposition and said that there was no bargaining area left open at all. He also stated that either at that meeting or in a subsequent telephone call from defendant a few days later, he had said, "I don't suppose you want to sell the building?" and defendant replied that he didn't think so but would give it some thought. Ridgeway testified that defendant called him a week or so later and said he would consider selling. Ridgeway asked how much defendant wanted and was told $3,700,000. Ridgeway then told defendant that Seven-Up was not interested and that they were going ahead with their...