MILLER v. GOTSMAN

SPERRY, Commissioner.

This is an appeal from a judgment in favor of Carl W. Miller, plaintiff, against Louis C. and Erba Gotsman, husband and wife, defendants, in the amount of $4500, plus $675 interest, for a real estate commission.

Plaintiff was an authorized real estate agent and defendants owned an apartment house known as Park Manor. Plaintiff had a client who was desirous of purchasing an apartment house and he approached defendants, to ascertain if they would sell their property and, if so, on what terms. Plaintiff contends that defendants agreed to sell said property to plaintiff's client for the sum of $90,000; to pay plaintiff a commission of 5% for his services; and that his client agreed to buy and was ready, able and willing to do so. Defendants contend that they never agreed to sell their property to plaintiff's client, or to pay plaintiff any commission. The jury returned a unanimous verdict for plaintiff.

Defendants challenge the sufficiency of the evidence to make a submissible case. This makes it necessary that we review the evidence.

Plaintiff testified to the effect that Mrs. Lena Moynahan was a client to whom he had sold real estate, and for whom he had sold property, over a period of years; that she wished to purchase an apartment house known as Park Manor, owned by the Gotsmans, Gotsman also being a real estate broker; that about the middle or latter part of November, 1948, he contacted Gotsman, told him that he had a client who wanted to buy the property, and asked him if he would sell; that he saw and talked with Gotsman a number of times; that Gotsman eventually told him that they would sell for the sum of $90,000; that he told Gotsman that the price was $15,000 too high, but that he would try to sell it; that he told Gotsman that he made his living by selling real estate and that, if he was successful in effecting a sale, even at the very high figure of $90,000, he would expect to be paid a full commission; that Gotsman told him that he would expect to pay such a commission; that in the early part of December he arranged with Gotsman to show the property to Mrs. Moynahan; that he and Mrs. Moynahan were met by Mrs. Gotsman, at the apartment occupied by Gotsmans; that she showed them several apartments and the basement; that while inspecting the property they met Mr. Ehn, another real estate man, employed by the agency for which Gotsman also worked; that Ehn was showing the property to a Mr. Joseph; that he eventually told defendants that Mrs. Moynahan would buy at the price of $90,000, and Gotsman told him that they would sell; that he prepared and submitted to the Gotsmans a contract of sale, and discussed its terms with them at their apartment; that they refused to sign said contract but told him to bring over other forms and they would draw a contract that would be satisfactory; that, on December 18, a Saturday, he met them at their apartment, where Mrs. Gotsman attempted to type a contract containing provisions suggested by and acceptable to Gotsman; that she made mistakes so that it had to be typed again; that a Mr. Craig, a lawyer specializing in income tax matters, came to the apartment to consult with the Gotsmans; that Craig finished typing the contract; that plaintiff asked Gotsman to sign it; that Gotsman patted him on the shoulder and said that he was the seller, for plaintiff to get his client's signature, bring it back, and that defendants would then sign it; that plaintiff procured Mrs. Moynahan's signature and tendered the signed contract to defendants that night; that they made some excuse and refused to sign until Monday; that all copies of the contract were later mailed to him by Mr. Craig, unsigned; that defendants refused to execute the contract and refused to pay plaintiff any commission.

Mrs. Moynahan testified to the effect that she wanted to buy an apartment house; that she discussed the matter with plaintiff, who had assisted her in the past in buying and selling property; that she and plaintiff inspected the property, as related by plaintiff, and that she agreed to buy on the terms and at the price demanded by defendants; that plaintiff presented a contract, which she signed at three different places, and that she signed and delivered to him a check for $1,000 as earnest money; that she, at the time, had $40,000 in government bonds, the proceeds of which were available for payment on the property; that she was ready, able and willing to buy on defendants' terms, on December 18, when she signed the contract.

Mr. Joseph testified to the effect that he was interested, in December, 1948, in purchasing an apartment house and was shown defendants' property by Mr. Ehn and by Gotsman; that while being shown the property he saw plaintiff and Mrs. Moynahan inspecting the basement, in company with Mrs. Gotsman.

A document was introduced in evidence which consisted of a printed form of contract for sale of real estate with blanks typed in, giving the names of parties, price and description of the property. Attached thereto are two sheets of paper, referred to by defendants as "allonges," one of which contained the terms of sale, method and time of payment, and rate of interest on the mortgage to be carried back. The other, attached to the back of the printed form, contained the description and numbers of the 12 apartments in the house, and the rate per month at which they were rented, and a provision for payment to plaintiff out of the purchase price the sum of $4500 for commission. It is referred to in the first sheet which was attached to the front of the main form.

Each of these sheets was signed by Mrs. Moynahan, as buyer, as was the main paper to which the sheets were stapled, on lines provided for that purpose. The three sheets made up the alleged contract, and the original and a copy were in evidence. This is the contract which, in the above form, was handed to the Gotsmans by plaintiff and, by Mr. Craig, mailed back to plaintiff unsigned.

By the terms of the document it was provided that the sale price was to be $90,000; $1,000 was to be paid down at the time the contract was signed and $29,000 in cash was to be paid when the deal was consummated. The balance was to be carried back by a first and second mortgage.

Gotsman testified to the effect that plaintiff asked him if he would sell the property but that he never agreed to sell it; that nothing was ever said to him about paying commission; that, as a real estate agent, he understood that plaintiff represented Mrs. Moynahan; that he knew that it was customary for the seller to pay a 5% commission to an agent for the sale of property; that he agreed to permit plaintiff to show the property to Mrs. Moynahan, and that he saw and talked with them while they were inspecting the property, at which time Mr. Ehn, at Gotsman's suggestion, was showing it to Mr. Joseph; that plaintiff delivered to defendants a prepared contract which was not completed; that, later, at defendants' apartment, they and plaintiff discussed the terms of a contract and that Mrs. Gotsman started to type it but made mistakes; that Mr. Craig came in at that time to discuss the income tax angle of the sale and that Craig took over and completed the typing; that plaintiff then "stuffed" a lot of papers in his pocket and left to get Mrs. Moynahan's signature; that he, at no time, told plaintiff that he would sign the contract; that the two attached sheets referred to as "allonges" were not typed on the typewriter owned by defendants and used by Mrs. Gotsman and Mr. Craig; that he knew nothing about the paragraph providing for payment of commission but he admitted that he furnished plaintiff with a schedule of rentals. He admitted that the watermark appearing on a sheet of paper typed by Mrs. Gotsman, at their apartment during the course of the trial, which latter sheet he himself produced in court, bore a watermark identical with that borne by the allonges attached to the front of the printed form.

Mrs. Gotsman stated that she told plaintiff and Mrs. Moynahan, when they came to inspect the apartment, that because of her health, defendants considered selling the property; that she showed it to them and that plaintiff told her that he and Mrs. Moynahan would buy it at $90,000; that plaintiff came to defendants' apartment Saturday afternoon, December 18, and discussed with them the terms of a contract of sale; that she started to "copy" a contract but made mistakes; that Mr. Craig came in, took the typewriter and completed typing; that the two allonges Craig typed were attached to the main form by mucilage, not staples; that the two sheets attached to the printed form in evidence were attached by staples, not mucilage; that plaintiff told them that if not more than 1/3 of the purchase price was paid down it would not be a "cash" sale, for income purposes; that Mr. Craig told them, in plaintiff's presence, that it would be a cash sale if 30% or more was paid down; that plaintiff took some papers and left but that they never agreed to sell the property, couldn't afford to do so because of income taxes.

Mr. Craig stated that he visited the Gotsman apartment and advised them about the income taxes on the sale; that plaintiff was there and that witness took over the typewriter and completed copying some papers which Mrs. Gotsman had been working on; that plaintiff took some papers and left to secure the signature of Mrs. Moynahan thereto; that the document in evidence is a forgery and is not the document upon which he typed; that the typing on the first attached sheet appeared to be that of a different machine than that used in typing the blanks in the printed contract; that the carbon paper used on the documents in evidence was different in color form that used by him; and that the sheets in evidence were attached by staples instead of by mucilage, which was used by him. On cross-examination he admitted that he made no charge of substitution or forgery in a letter written by him and attached to the papers returned to plaintiff which, he admitted, were the papers in evidence. He also admitted having given his deposition wherein he stated that he paid but very little attention to the papers that he typed in the apartment. He made no mention of substitution or forgery in his deposition and stated therein that he was not sure that the papers which Gotsman brought to his office were the ones upon which he typed.

From the foregoing it appears that there is a sharp conflict in the testimony given by plaintiff as against that given by Gotsman in certain vital points. Plaintiff stated that he told Gotsman that he would expect a full commission if he procured a buyer, and that Gotsman agreed to pay a full commission. Gotsman flatly denied any such conversation. Plaintiff stated that, after the terms of a contract for sale were agreed on in Gotsman's apartment, that Mrs. Gotsman and Craig typed it out and that the sheets were attached to the printed form previously prepared by plaintiff. The Gotsmans agree that some kind of contract was typed by Mrs. Gotsman and Craig but deny that the document in evidence is it, or that they ever agreed to sell their property. Plaintiff stated that Gotsman told him to get it signed by Mrs. Moynahan and that defendants would then execute it. Defendants and Craig deny that such a conversation occurred.

There are other sharp conflicts in the testimony. Such conflicts were for the jury to decide. The verdict was for plaintiff and we are bound thereby. Plaintiff's testimony, if true, established the existence of an express contract for the employment of plaintiff to procure a buyer for the property, and to pay a commission therefor. Le Compte v. Sanders, Mo.App., 229 S.W.2d 298, 301.

Defendants' contention that plaintiff represented Mrs. Moynahan alone and was merely a volunteer so far as defendants are concerned, cannot be allowed. There was ample evidence tending to prove that plaintiff was employed as the agent of defendants with full knowledge on their part that Mrs. Moynahan was the customer to whom plaintiff hoped to sell; and Mrs. Moynahan stated that she never agreed to pay plaintiff anything for his services. No duel agency was shown. The principle announced in Ballentine v. Mercer, 130 Mo. App. 605, 109 S.W. 1037, 1041, applies in this case.

It is next contended that plaintiff is precluded from recovery because of false and fraudulent representations made to defendants regarding income tax that might be chargeable in the event the sale was made. Fraud was not pleaded but, regardless, defendants admitted having consulted with their tax attorney at the very time the contract was being prepared, and that he advised them regarding taxes. They did not rely on any statement in that regard made by plaintiff, a layman, but consulted a lawyer prior to telling plaintiff, as plaintiff says, to get Mrs. Moynahan's signature and that they would sign thereafter.

It is also urged that plaintiff's testimony was "so contradictory" as to destroy itself. They cite Steele v. Kansas City Southern, 265 Mo. 97, 175 S.W. 177, and other cases of like import.

The situation here presented is completely unlike that shown in the Steele case. At most, any alleged variances in plaintiff's testimony were for the jury to reconcile and determine.

It is also urged that error was committed by the giving of plaintiff's Instructions 1 and 2a; that they are in conflict with each other and with the defendants' Instruction 1.

Instruction 1 directs the jury that, if they should find certain facts, all of which were in evidence and which, if true, established the existence of an express contract whereby defendants authorized plaintiff to find a buyer for the property, and if they should find that plaintiff produced such a buyer who was ready, able, and willing to purchase at the price and upon the terms and conditions fixed by defendants, then they should find the issues for plaintiff.

Instruction 2a provides as follows:

"The Court instructs the jury that the law does not require that there be a written contract between plaintiff and defendants but rather the law requires that defendants authorized plaintiff expressly or impliedly, either orally or in writing or by their conduct, to offer defendants' apartment building for sale at a certain price and that defendants agreed to pay plaintiff a commission if plaintiff found a buyer ready, willing and able to buy as required by Instruction No. 1."

It is urged that Instruction 2a, when considered together with Instruction 1, constitutes submission on an implied contract. We think not. Instruction 2a was merely an abstract declaration of law, probably intended to inform the jury that plaintiff was not required to prove that the express contract, submitted under Instruction 1, was in writing. It did not direct a verdict but referred the jury back to and required them to follow Instruction 1.

By defendants' Instruction 3 the jury was told that they could not find for plaintiff unless they should find that he had been expressly employed by each of defendants to sell the property, and that they had expressly agreed to compensate him for his services. That instructions is in complete harmony with Instructions 1 and 2a. All of the instructions must have been read together and the jury could not have been misled or confused but were bound to have known that plaintiff relied on an express contract, and that he was not entitled to recover unless they found that one existed.

Defendants also contend that the court erred in unduly restricting cross-examination of plaintiff.

They urge that the court erred in not permitting full cross-examination of plaintiff regarding the length of time he had represented Mrs. Moynahan in buying and selling real estate. It does not appear that the court abused its discretion by unduly restricting the evidence in this field. Both plaintiff and Mrs. Moynahan stated that plaintiff had assisted her in buying and selling property over a long period of years.

Defendants also contend that it was error not to permit them to cross-examine more fully as to conversations between them and plaintiff regarding income taxes that would accrue as a result of a sale of the property. Abundant evidence was received to the effect that defendants were greatly concerned with the amount of income tax they would have to pay. Plaintiff stated that he discussed it with them, that it was an important factor throughout negotiations. However, with their own attorney present for the purpose of advising them on this very matter, Mrs. Gotsman and their attorney typed a contract of sale and, plaintiff contends that, it was executed by Mrs. Moynahan. The court's rulings and comments made it clear that after defendants agreed to sell, if they did agree, further evidence of discussions regarding income taxes on the sale is immaterial. We cannot criticize that position and, under the whole record, we think the court did not err in connection with this contention of defendants.

Defendants complain that the document in evidence, claimed to be the proposed contract of sale as between defendants and Mrs. Moynahan, was frequently referred to by plaintiff and his counsel as "the contract," and that same was prejudicial to them. The record disclosed that the court, and counsel for both parties, during the course of the trial, made it clear to the jury that what was referred to as "the contract" was the paper writing, or document, in evidence, which was not signed by defendants; and that the question for the jury to determine was whether or not defendants contracted with plaintiff to sell their property. Instructions 2a and 3 tended to further clarify that point. No prejudicial error is found in this connection.

The judgment should be affirmed.

BOUR, C., concurs.