Opinion
No. 21792.
February 2, 1953.
APPEAL FROM THE CIRCUIT COURT, MONITEAU COUNTY, SAM C. BLAIR, J.
Leon P. Embry, California, for appellant.
S.W. James, Jr., Jefferson City, for respondent.
This is a suit for a real estate commission. Trial to a jury resulted in a judgment for $500 in favor of plaintiff. Defendant has appealed.
Defendant, H. E. Friedmeyer, and R. H. (Bob) Latham, owned what was known as the Butts farm, of 100 acres, near California, Missouri. The legal title was vested solely in Latham. Plaintiff was a licensed real estate broker and was instrumental in bringing about a transfer of this farm to Herman Smith. The consideration paid by Smith was a note in the amount of $6500, secured by a deed of trust on the Butts farm and on a 60 acre farm, previously owned by Smith, which latter farm was then subject to a prior deed of trust in the amount of $955. The deed of trust on the Smith 60 acres was, later, foreclosed. Friedmeyer and Latham received nothing from that part of their security. Still later, Smith voluntarily deeded the Butts farm back to Latham, who held it, as before, for himself and defendant. No money was ever paid by Smith.
This suit is against Friedmeyer alone, who signed a written instrument, introduced in evidence and referred to as exhibit 4. Plaintiff claims it is a valid written contract employing him to sell the property. This law suit is based on that instrument, which provides as follows:
"July 29-1949 We agree to let Sam Papen sell my 100 acre Farm 3 miles East of California Mo known as the Dr. Butts Farm I agree too pay him 5 per cent Commission. If he Cannot get More than $6000.00 If he Can get More money I will give him all above $6000.00 Then we get the $6000.00
(signed) H. E. Friedmeyer Witnessed By C. J. Phillips (signed)"
Plaintiff alleged that he found a purchaser for the farm, at $6500; that a sale was consummated with said purchaser, at said consideration, and that defendant became thereby indebted to plaintiff in the amount of $500, for which he prayed judgment.
Plaintiff testified to the effect that, previous to the occurrences here involved, he had been instrumental in effecting a transfer of the Butts farm to defendant and Latham in exchange for a town property owned by them; that, afterward, Latham asked him to sell the farm; that on July 29, 1949, he saw and talked with defendant, on the street in California; that defendant asked him if he could sell the Butts farm; that plaintiff said: "I can't with Latham changing the prices"; that defendant said: "You tell Mr. Latham I said we wanted to sell this place. You go back and tell him"; that Friedmeyer said they wanted $6000 for the farm and would pay 5% on that amount, or would pay, as commission, all in excess of $6000. Plaintiff further stated that he immediately went and talked to Latham, who said: "You go back and whatever deal you make with Mr. Friedmeyer I will stand to"; that plaintiff cannot see, even with glasses, and that one Charles Phillips was accompanying him, driving for him; that Phillips wrote exhibit 4, at the direction of plaintiff, while they sat in plaintiff's car, in California, immediately after the above conversation with Latham; that he went into defendant's store, accompanied by Phillips, and that defendant read the exhibit and signed same; that Herman H. Smith wanted to look at the farm with a view to its purchase; that Smith had no money but wanted to give a note for $6500 secured by a deed of trust on the Butts land and a 60 acre farm owned by Smith, which latter farm was already encumbered; that he showed Smith the farm and referred him to defendant and Latham regarding the method of payment; that, later, he took Smith to Latham and told Latham and Smith to work it out; that a deal was made on that same day; that deeds were prepared, executed and delivered, in J. T. Lee's Abstract office; that, later, he talked to defendant; that: "`I said, its time for us to begin settling up' and he said he didn't know. He said, `I get two percent off on all debts for cash,' and he said `On this occasion I pay you $250.00 and you lose $250.00', and I said, `I never settle debts for fifty cents on a dollar.'" Plaintiff further stated that the farm was valued at $6500 in the trade.
Mr. Phillips stated that he operated a store at High Point, near California; that he sometimes drives for plaintiff because of the latter's poor vision; that he was present when plaintiff and defendant conferred about selling the Butts farm; that defendant told plaintiff to see Latham; that he was present, later that day, and heard a conversation between plaintiff and Latham relative to the sale of the Butts farm; that Latham told plaintiff: "Whatever Friedmeyer says, I will stand to. You talk to him and whatever he says, that goes"; that he and Papen went along the street, across from defendant's store and, "I wrote that little piece on that paper there," (exhibit 4); that plaintiff told him what to write; that they then entered defendant's store; that plaintiff handed defendant the paper; that defendant read it and plaintiff asked if it was all right; that defendant signed it and then said: "Take this and get going and get rid of that place."
Smith testified to the effect that he talked to plaintiff about acquiring the Butts farm; that plaintiff showed him the place and told him the price was $6500; that he told him to see defendant and Latham about terms of payment; that he then saw and talked to Latham about the deal; that Latham sent him to defendant; that he told defendant he had no money but would give a note secured by deed of trust as above stated; that plaintiff was not present at that time but later told him to go to the abstract office to sign papers; that the transaction was completed, the deed delivered, and note and deeds of trust executed and delivered; that he became ill and was unable to pay anything on his obligation.
Mr. Latham denied telling plaintiff that he, Latham, would "Stand to" any agreement or arrangement regarding sale of the Butts farm that defendant might make with plaintiff; that he held sole title to the Butts farm but defendant owned a one-half interest in it; that he told plaintiff that when he got about $4000 cash from the Butts place they would pay him something as commission; that plaintiff told him that Smith had no money but that his father-in-law intended living with Smith and would pay $2500 on the farm; that no money was ever received on the note, and that the deed of trust was foreclosed, Latham having received title to the Butts farm thereby; that prior mortgage on the Smith farm has also been foreclosed.
Defendant stated that plaintiff never complained that Latham raised the price of the Butts farm from time to time; that he read and signed exhibit 4; that he would not have signed it if he had known that Latham would not sign it; that he did not think it would be a contract without Latham's signature; that he knew, before signing the exhibit, that plaintiff had talked with Latham; that Phillips was present when he talked to plaintiff the first time, on the day exhibit 4 was signed; that he did not remember for sure whether or not he was present when it was signed; that the terms of exhibit 4 are in accordance with terms previously agreed on between himself and plaintiff; that he understood that plaintiff had seen Latham after their agreement was reached and before the paper writing was signed; that, when he signed it, he did not tell plaintiff to go and have Latham sign it; that he was "not particularly" interested in having Latham sign it, but didn't think it would be binding unless signed by Latham; that defendant operates a furniture store and frequently sells merchandise, taking chattel mortgages thereon, and that he is familiar with contracts; that he told plaintiff that he got 2% off for cash on all bills but that he was only going to pay plaintiff $250. He stated that he and Latham had agreed on the price they would ask for the Butts farm.
Plaintiff, in rebuttal, stated that defendant, at no time, said anything about procuring Latham's signature to exhibit 4.
Defendant charges error because of the overruling of his motion for a directed verdict at the close of all of the evidence. He claims that plaintiff sued defendant, alone, on an express contract but that the evidence established an oral contract with defendant and another, if it established any contract at all. It is "hornbooklaw" that one must recover if at all, on the contract pleaded. Brown v. Clark's Estate, Mo.App., 207 S.W.2d 530, 531.
There is no question but that plaintiff declared on an express contract, in writing, with defendant alone. Consequently, plaintiff may not recover on a contract partly in writing and partly in parol. Koons v. St. Louis Car Company, 203 Mo. 227, 254, 101 S.W. 49. However, there was substantial evidence tending to prove the execution of the contract alleged. A submissible case was made thereon. Defendant sought to avoid the force and effect of exhibit 4 on the grounds that he would not have executed it except in the belief that he would not be bound thereby unless Latham also should execute it. However, he admitted that he did not tell plaintiff to procure Latham's signature; and both plaintiff and Phillips stated that defendant told plaintiff, before he signed exhibit 4, that Latham said he would "Stand to" any agreement made by defendant. Defendant denied this testimony, and Latham denied having made such a statement. It was within the province of the jury to weigh the testimony. By their verdict, on that issue, we are bound.
One who employs a broker to find a purchaser for real estate is liable to such broker for compensation regardless of the nature of the employer's interest in the property, and whether or not he has any interest whatsoever in said property. Feldman v. Goldman, Mo.App., 164 S.W.2d 634, 639; Hoyt v. Buder, 318 Mo. 1155, 1170, 6 S.W.2d 947. Evidence, in this case, establishing the fact that defendant was not vested with record title and actually owned only an undivided one-half interest in the property, did not have the effect of transmuting the action from one on an express written contract with defendant to one based on a partly written, partly oral contract, with two persons, or an implied contract, in quantum meruit.
It is also contended that plaintiff's main instruction is erroneous because it hypothesizes a contract partly in writing and partly in parol. The instruction is as follows:
"Instruction No. P-1
"The court instructs the jury that if you find and believe from the evidence in this cause that the plaintiff, Sam L. Papen, was duly licensed as a real estate broker under the laws of the State of Missouri for the yearly period from the 30th day of June, 1949, to the 30th day of June, 1950, and that as such broker he was authorized in writing by the defendant, H. E. Friedmeyer, acting for himself as the owner of an undivided one-half interest in said Dr. Butts farm, and for R. H. Latham and wife as the owners of the other undivided one-half interest in said farm, to sell said Dr. Butts farm and upon the sale thereof he was to receive as commission therefor the following: the sum of 5% of the sale price thereof if not more than $6,000.00, or if sold for more than $6,000.00, the plaintiff, Sam L. Papen, was to receive all over $6,000.00 received for said farm and defendant H. E. Friedmeyer and the said R. H. Latham and wife to receive the sum of $6,000.00, if you so find; and if you further find and believe from the evidence that the plaintiff thereafter, acting under the aforesaid authority in writing by the defendant H. E. Friedmeyer, produced one Herman Smith and wife as purchasers of said farm described in the evidence, if you so find, and that the said Herman Smith, were ready, willing and able to purchase said farm upon terms acceptable to the owners thereof, the said R. H. Latham and wife and defendant H. E. Friedmeyer, if you so find, and if you further find that the said Herman Smith and wife thereafter purchased said farm from the said R. H. Latham and wife and the said defendant H. E. Friedmeyer, and that said farm was thereupon conveyed to them by general warranty deed by the said R. H. Latham and wife as the title owners of record of the said Dr. Butts farm, if you so find, and if you further find that at the time of the conveyance of said farm to the said Herman Smith and wife the terms of said sale were agreeable to the said R. H. Latham and wife, and to the said defendant, H. E. Friedmeyer, then your verdict in this case must be for the plaintiff and against the defendant, H. E. Friedmeyer, and you will, in such event, compute the amount of the commission to which the plaintiff is entitled upon the value placed upon said Dr. Butts farm in the conveyance thereof to the said Herman Smith and wife, under the terms of the memorandum or instrument in writing signed by the defendant, H. E. Friedmeyer, as defined in another instruction in this case."
It was held, in Koons v. St. Louis Car Company, supra, that a plaintiff, having pleaded a written contract, may not recover on a contract partly in writing and partly in parol. There was no evidence (excepting the execution of the deed) which tended to prove any connection whatever between Mrs. Latham and the sale of the property to Smith through plaintiff's agency, or any agreement upon her part to be bound by the contract pleaded by plaintiff.
However, to authorize a submission to the jury, under his pleading, it was only necessary for plaintiff to prove the execution, by defendant, of the contract alleged, and the transfer of the property to a purchaser, procured by him, on the terms specified in the contract; and there was substantial evidence tending to prove those facts. To authorize a verdict for plaintiff, it was only necessary that the jury be required to find the existence of those facts. This the above instruction did. It was not necessary that plaintiff prove, or that the jury find and believe, that defendant was acting "for R. H. Latham and wife as the owners of the other half interest in said farm." Feldman v. Goldman, supra.
The fact the instruction erroneously placed an undue burden on plaintiff is not grounds for reversal unless defendant was prejudiced thereby. Schaeffer v. Reineke, Mo.App., 121 S.W.2d 213, 221; Buck v. Radcliff Motor Company, 233 Mo.App. 750, 125 S.W.2d 888, 890; Feldman v. Goldman, supra, 164 S.W.2d 639. We do not find that defendant was, or could have been, prejudiced by inclusion of the aforementioned matters in the instruction.
It is also contended that the instruction "is erroneously in conflict with appellant's instruction No. D-2, which latter instruction was correct." Instruction D-2 told the jury that if the jury should find that "the defendant did not intend or understand that such paper (exhibit 4) would become a contract unless and until it was also signed by R. H. Latham; and, if so, if you further find that the plaintiff * * *" knew that fact, then such paper did not become a contract and "your verdict must be for the defendant." This was defendant's theory of defense and he was entitled to have it submitted; but plaintiff was not required, in his main instruction, to negative every defense theory offered by defendant, nor is instruction D-2 erroneously in conflict with instruction P-1.
Instruction D-3 told the jury that plaintiff's case is based on the paper writing pleaded and in evidence, and that, if they should find that said paper did not become a contract because not signed by Latham, then their verdict could, on no theory, be for plaintiff. It is contended that this instruction is also in conflict with instruction P-1. For the reasons stated in the preceding paragraph the contention is ruled adversely to defendant.
It is charged that instruction P-1 authorized a verdict on quantum meruit because, under it, together with instruction P-2, the jury was authorized, if a verdict was found for plaintiff, to find the amount thereof as being 5% if the sale value of the farm was found to be $6000; and if the sale value was found to have been more than $6000 then a verdict was authorized for such sum as was in excess of $6000. It was true that there was no evidence tending to prove a sale value of less than $6500; nevertheless, that submission did not constitute one in quantum meruit, "as much as he deserved." The submission was in strict accordance with the terms of the written contract in evidence, if not strictly justified under all of the evidence. If, as defendant contends, plaintiff was entitled, under the evidence, to a verdict of $500 or nothing, the error is harmless and defendant was not prejudiced thereby. We will not reverse a judgment because of error not affecting the merits of the case. Buck v. Radcliff Motor Company, supra, 125 S.W.2d 890.
There are other contentions made by defendant but they revolve around those above disposed of. None are of sufficient importance to justify extending this opinion further.
The judgment should be affirmed.
BOUR, C., concurs.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. The judgment is affirmed.
All concur.