Summary
In O'Neal v. Mavrakos Candy Co., 364 Mo. 467, 263 S.W.2d 430, 431 (1953), there was evidence of employment, and plaintiff told Mavrakos that the owners would not pay a commission, and he would have to do so, but the amount was not in evidence.
Summary of this case from Dark v. MurrayOpinion
No. 43669.
December 14, 1953. Rehearing Denied, January 11, 1954.
Plaintiff real estate broker sued for a commission for obtaining a real estate lease for defendant lessee. Plaintiff failed to prove an express contract to pay a commission. It is doubtful whether plaintiff's petition could be construed as a claim in quantum meruit, and proof of customary commissions paid by lessors was not proof of a reasonable and customary commission when paid by the lessee. The judgment in favor of plaintiff is set aside, but plaintiff should be permitted to amend his petition to clearly state a claim in quantum meruit.
1. BROKERS: Contracts: Obtaining Real Estate Lease: Express Contract Not Established. The evidence of plaintiff real estate broker did not establish an express contract for the payment of a commission for obtaining a lease.
2. PLEADING: Brokers: Contracts: Quantum Meruit Not Pleaded. It is doubtful whether plaintiff's petition could be construed as stating a claim in quantum meruit.
3. BROKERS: Contracts: Evidence: Customary Commission Not Established. Evidence of a customary commission paid by lessors based on a percentage of the rentals was not evidence of a customary commission paid by lessees to obtain a lease.
4. APPEAL AND ERROR: Brokers: Contracts: Obtaining Lease: New Trial on Amended Petition Permitted. Plaintiff should be permitted to amend his petition to state a claim on quantum meruit for the reasonable value of his services in obtaining a lease for defendant.
Appeal from Cole Circuit Court; Hon. Sam C. Blair, Judge.
REVERSED AND REMANDED (with directions).
Arthur G. Heyne for appellant; Joseph Nesscufeld of counsel.
(1) Plaintiff alleged an express contract of employment by defendant at an agreed fee. He failed to prove that he was employed at all, that defendant was a party to the contract, and that there was an express agreement to pay a fixed fee. One who alleges an express contract must prove the contract pleaded. Plaintiff's evidence was insufficient to prove the express contract alleged, and therefore, the judgment was for the wrong party. Crotty v. Barker, 188 S.W. 927; Jones v. Hill, 188 S.W.2d 382; Deisel-Wemmer-Gilbert Corp. v. David Chalmers Tobacco Co., 221 Mo. App. 631, 104 S.W.2d 1029; Hughes Thurman v. Dodd. 164 Mo. App. 454, 146 S.W. 446; Taylor v. Scbastian, 158 Mo. App. 147, 138 S.W. 549; Usona Mfg. Co. v. Shubert Christy Corp., 132 S.W.2d 1101; Dodd v. Clifford, 139 S.W.2d 953. (2) Plaintiff failed to prove that he performed the services which he alleged he contracted to perform, i.e., to obtain a lease on the Hope Building. He was not the efficient procuring cause of the lease. No recovery can be had on an express contract without proof that plaintiff performed the services agreed to be performed. Hughes Thurman v. Dodd, 164 Mo. App. 454, 146 S.W. 446; Vigeant v. Fidelity Natl. Bank Trust Co., 236 Mo. App. 774, 158 S.W.2d 184; Kyle v. Kansas City Life Ins. Co., 201 S.W.2d 912; Clarkson v. Standard Brass Mfg. Co., 237 Mo. App. 1018, 170 S.W.2d 407; Warren v. Fritsch, 14 S.W.2d 29; Crain v. Miles, 154 Mo. App. 338, 134 S.W. 52; Meredith v. Martin, 9 S.W.2d 860; English v. Pace, 236 S.W. 392. (3) The court's finding is against the overwhelming weight of the evidence and is for the wrong party. The court erred in failing to find that the alleged contract never existed and that plaintiff was not the efficient procuring cause of the lease. The trial court, therefore, erred in finding for plaintiff and this court in its review de novo, should so hold. Leone v. Bear. 241 S.W.2d 1008; Proffil v. Houseworth, 360 Mo. 947, 231 S.W.2d 612; Vigeant v. Fidelity Natl. Bank Trust Co., 236 Mo. App. 774, 158 S.W.2d 184; Ramsey v. West, 31 Mo. App. 676; Bassford v. West, 101 S.W. 610; Meredith v. Martin, 9 S.W.2d 860; Warren v. Fritsch, 14 S.W.2d 29; Crain v. Miles, 154 Mo. App. 338, 134 S.W. 52; Low v. Paddock, 220 S.W. 969. (4) The court erred in admitting in evidence testimony of plaintiff relating to statements to and by French Nelson. Mr. Nelson was not an agent of defendant, and was not authorized to make the statements. The evidence was hearsay, and incompetent. Baker v. Fenley, 233 Mo. App. 998, 128 S.W.2d 295; Kaden v. Moon Motor Car Co., 26 S.W.2d 812; Atkinson v. American School of Osteopathy, 240 Mo. 338, 144 S.W. 816; Stipel v. Piggott, 219 Mo. App. 222, 269 S.W. 942; Rhoades v. Robinson's Estate, 6 S.W.2d 1007; Kribs v. Jefferson City L.H. P. Co., 199 S.W. 261; Tennison v. St. L.S.F. Ry. Co., 228 S.W.2d 718. (5) The amount of the finding and judgment is excessive. To the extent it exceeds $840.00, it is without any evidentiary support whatever. 5% of the gross rental in $840.00, and there is no additional rent payable under the lease. The court therefore, erred in awarding plaintiff $2,340.00, rather than $840.00, even if plaintiff is entitled to a commission of 5% of the rent specified in the lease. Whipple v. Edward Aaron. Inc., 74 S.W.2d 1089; State ex rel. Kimbrell v. Peoples Ice Storage Fuel Co., 246 Mo. 168, 151 S.W. 101, 112 [12].
Ira H. Lohman and Charles H. Howard for respondent.
(1) Taken as a whole the petition sought recovery upon a quantum meruit and not upon an express or explicit contract. Stanley v. Whitlow, 168 S.W. 840, 181 Mo. App. 461; Hoyt v. Buder, 6 S.W.2d 947; 51 C.J. 116; 73 C.J.S., p. 1269; Lee-Scherman Realty Co. v. Rueffel, 176 S.W.2d 655; Beerand v. Benwood-Linze Co., 192 S.W.2d 660; Fuldner v. Issac T. Cook Co., 127 S.W.2d 726, l.c. 731 and cases therein cited. (2) The case was tried entirely on a quantum meruit theory; no objection was ever made by appellant; the pleadings were never attacked, and after judgment the points raised by appellant that respondent failed to prove an expressed contract to pay a fixed fee, or that there was a variance, comes too late. Secs. 511.260, 511.270, R.S. Mo. 1949; Grether v. McCormick, 79 Mo. App. 325. (3) It is not necessary for the court to find that an expressed or explicit contract existed. All that was necessary for respondent to prove was that his services were requested, that he introduced and put appellant in touch with the owners, and that as a result of bringing them together the lease was executed. LeCompte v. Sanders, 229 S.W.2d 298; Chamberlain v. Grisham, 229 S.W.2d 14, 230 S.W.2d 721; Bowman v. Rahmoeller, 55 S.W.2d 453, 331 Mo. 868; Studt v. Leiweke, 100 S.W.2d 31; Henning v. Holbrook-Blackwelder Real Estate Trust Co., 218 Mo. App. 433. 277 S.W. 62. (4) Where the one who renders services and the one for whom the services are rendered are strangers to each other, a prima facie case is made in an action for recovery of services, by proof of the rendition of the services and reception and appropriation of the services by the one for whom they were rendered. Abresch v. Schultz. 216 S.W.2d 134. (5) French Nelson was an agent of defendant, and the court did not err in admitting in evidence testimony of respondent relating to statements to and by French Nelson. The evidence was competent and admissible. Sills v. Burge, 141 Mo. App. 148, 124 S.W. 605; Hawkins v. Laughlin, 236 S.W.2d 375; Minter v. Rothschild, 186 S.W. 753. (6) Even if Nelson were not the agent, his testimony was admissible to show that respondent performed the services. Ross v. Major, 163 S.W. 880, 178 Mo. App. 431. (7) The existence and scope of the agency need not be established by direct and positive evidence but may be inferred from the facts and circumstances. The relationship does not depend upon an expressed appointment and acceptance, but is often to be implied from the words and conduct of the parties to the transaction. State ex rel. Massman v. Bland, 194 S.W.2d 42, 355 Mo. 17; Thimmig v. General Talking Picture Corp., 85 S.W.2d 208; State ex rel. Smith v. Bland, 186 S.W.2d 443, 353 Mo. 1073; Bommer v. Stedelin, 237 S.W.2d 225. (8) This is clearly an action at law, a jury was waived by both parties. No declarations of law or findings of fact were requested or made by appellant. This case having been tried by the court without a jury and no declarations of law or finding of fact requested, we will sustain the judgment if the record discloses any substantial evidence or reasonable inference therefrom to support it. Gardner v. North Kansas City Alfalfa Mill, 61 S.W.2d 374; St. L.-S.F. Ry. Co. v. Dillard, 328 Mo. 1154, 43 S.W.2d 1034; Fulton v. K.C. Life Ins. Co., 148 S.W.2d 581; Seneca Textile Corp. v. Missouri Flower Feather Co., 119 S.W.2d 991; Perin v. Johnson, 124 S.W.2d 551; Heath v. Perky Bros. Transfer Co., 157 S.W.2d 600; Eveloff v. Cram, 161 S.W.2d 36, 236 Mo. App. 1013; No Dust O Co. v. Home Trust Co., 46 S.W.2d 203. (9) While the new code provides that the court shall review cases tried by the court without a jury, the code also provides that no judgment shall be reversed unless clearly erroneous, and due regard shall be given the opportunity of the trial court to judge the credibility of the witnesses. The rule is practically the same as it was before the adoption of the code. Bokata v. Ill. Bankers Life Ins. Co., 195 S.W.2d 888; Brown v. Montgomery, 193 S.W.2d 23, 354 Mo. 1041; Kraemer v. Shelly, 214 S.W.2d 525, 358 Mo. 364; White v. Foster, 194 S.W.2d 723; Stewart v. Russell, 227 S.W.2d 1011; Abbott v. Record, 233 S.W.2d 793; Dell-Wood Tires v. Riss Co., 198 S.W.2d 347. (10) Since this case was briefed in the Court of Appeals it held that the suit was on an express contract, and the proof quantum meruit. The Kansas City Court of Appeals is entirely in error on this point; that question was never called to the attention of the trial court, and was never raised below. That question was never before the Kansas City Court of Appeals, because it was never presented in the motion for new trial. (11) The proof is exactly like the pleadings, there could not possibly be any variance, and the decision of the Kansas City Court of Appeals on that issue was clearly erroneous. If this were an action on an express contract, the allegation of the reasonable value for the services would have no place in the petition. Hoyt v. Buder, 318 Mo. 1155, 6 S.W.2d 947; Kline v. St. Louis Terminal Ry., 268 S.W. 660; Muench v. Southside Natl. Bank, 251 S.W.2d 1; 9. C.J., p. 580, par. 78. (12) The petition alleges the defendant agreed to pay plaintiff the usual and ordinary commission, proof follows the petition. This is an allegation of reasonable commission. Black's Law Dictionary defines "reasonable" as follows: `Reasonable. Agreeable to reason; just; proper. Ordinary or usual." Black's Law Dictionary, 2nd Ed. p. 994; 3rd Ed. p. 1399. (13) Appellant by not objecting to a variance so as to afford the respondent an opportunity to amend cannot complain of a variance on appeal. Fisher Real Estate Co. v. Spaed Realty Co., 159 Mo. 562; Howard v. Baker, 119 Mo. 397; Mayers v. Chambers, 68 Mo. 626; Harrison v. Lakeman, 189 Mo. 581. (14) There is only one question before this court, and that is whether there is sufficient evidence to support the judgment. (15) Where a case is tried before the court without a jury, the appellate court must, under the statute, review the case upon both the law and the evidence — great deference must be paid to the decision of the trial court, who, by reason of hearing and seeing the witnesses, was better able to judge their credibility than we who read only the cold record. Abbott v. Record, 233 S.W.2d 793; Costello v. Moore et ux., 211 S.W.2d 921; Cosentino v. Heffelfinger, 229 S.W.2d l.c. 549. (16) Our courts have repeatedly held that the appellate court should defer to the findings of the chancellor, or of the trial judge, upon conflicting testimony, since he had a better opportunity to judge the credibility of the witnesses and the weight to be given their testimony. Bitzenburg v. Bitzenburg, 226 S.W.2d 1017; Wright v. Brown, 177 S.W.2d 506; Feigenspan v. Pence, 168 S.W.2d 1074, 350 Mo. 821; Hamilton v. Steininger, 168 S.W.2d 59, 350 Mo. 698; Holland v. Martin, 198 S.W.2d 16, 335 Mo. 767; Williamson v. National Garage Co., 203 S.W.2d 126; Rose v. Houser, 206 S.W.2d 571 White v. Foster, 194 S.W.2d 723. (17) All that was necessary for respondent to prove that his services were requested was that he introduced and put appellant in touch with the owners, and that as a result of bringing them together the lease was executed. LeCompte v. Sanders, 229 S.W.2d 298; Chamberlain v. Grisham, 229 S.W.2d 14, 230 S.W.2d 721; Bowman v. Kahmoeller, 55 S.W.2d 453, 331 Mo. 868; Studt v. Leiweke, 100 472 S.W.2d 31, l.c. 33-34; Hennings v. Holbrook-Blackwelder Real Estate Trust Co., 218 Mo. App. 433, 227 S.W. 62. (18) Where the one who renders services and the one for whom the services are rendered are strangers to each other, a prima facie case is made in an action for recovery of services, by proof of the rendition of the services and the reception and appropriation of the services by the one for whom they were rendered. Abresch v. Schultz., 216 S.W.2d 134.
Action to recover commission claimed to be due for obtaining a lease for the lessee. The Court, a jury being waived, found for plaintiff for $2,340.00 and defendant appealed to the Kansas City Court of Appeals. That Court reversed the judgment on the ground that plaintiff declared upon an express contract and failed to prove it; but remanded with directions to permit plaintiff to amend his petition to declare on quantum meruit.
The facts are sufficiently stated in the opinion of the Court of Appeals (O'Neal v. Mavrakos Candy Co., 255 S.W.2d 138) and are hereby adopted as our statement. Plaintiff's petition alleged that defendant employed plaintiff to obtain a lease on the Hope Building in Jefferson City "and did agree to pay the plaintiff the usual and ordinary commission for his services in procuring said lease, providing that the defendant was able to procure a lease on the aforesaid building and premises." However, plaintiff's testimony was that he only told Mr. Mavrakos that the owners would not pay a commission and that he would have to pay the commission. Plaintiff admitted that he said nothing to Mavrakos about the amount of commission. (See plaintiff's testimony set out in the Court of Appeals opinion. 255 S.W.2d, l.c. 141.) Therefore, the Court of Appeals correctly held that an express contract for commission was not established.
However, plaintiff says his allegation that defendant agreed to pay the usual and ordinary commission is an allegation that he agreed to pay a reasonable commission and is sufficient to state a claim in quantum meruit. He cites Black's Law Dictionary, 3rd Ed. 1499, which gives "ordinary or usual" as one definition of "reasonable." Plaintiff also cites 8 Am. Jur. 1070, Sec. 146, as follows: "If there is no agreement fixing the compensation which a broker is to receive for his services, but there is a well-established custom in the neighborhood with respect to the amount of compensation to which the broker is entitled, the law implies a promise on the part of the person employing him to pay the usual and customary commission. If no such custom or usage can be shown the broker is entitled to recover a reasonable compensation." (Also citing 12 C.J.S. 170, Sec. 78; Kline v. St. Louis Terminal R. Assn., (Mo. App.), 268 S.W. 660; Hoyt v. Buder, 318 Mo. 1155, 6 S.W.2d 947; Muench v. Southside National Bank, (Mo. Sup.), 251 S.W.2d 1.) However, in all three of these cases there was an allegation as to reasonableness of the charges. (In the Kline case: "that the reasonable and customary commission for such service was 5 per cent." In the Hoyt case: "That the reasonable value of said services of the plaintiff, the usual price and charge therefore, and the price which the defendant agreed to pay the plaintiff for the same was and is $20,167.50." In the Muench case, it was "alleged that the services were reasonably worth $3 per day.") The word "reasonable" does not appear in plaintiff's petition. He only alleges that the defendant agreed to pay the usual and ordinary commission and then says "that the usual and ordinary commission for securing leases on industrial property in Jefferson City, Missouri, is 5% of the total gross rental value of said property." Therefore, to construe this petition as quantum meruit, we would have to go beyond any of the cases plaintiff cites.
However, even if we could imply the allegation of reasonableness of the charge, there is another defect in making plaintiff's case on quantum meruit, which is no mere technical question of pleading, namely, the lack of proof of either reasonableness of the amount claimed or of any custom or usage applicable to the transaction. Plaintiff, for such proof, relied entirely upon the minimum schedule of fees adopted by the Jefferson City Real Estate Board, but the only fees shown for negotiating leases are those to be paid by the owner or lessor. This very clearly appears from the provisions in the schedules requiring the lessor to pay them. Payment by the lessee is not mentioned. [432] These fees are based on a percentage of the total or gross rents which the lessee is obligated to pay to the lessor. While, no doubt, this is a reasonable basis for the fee to be paid by the lessor, because the more rent he gets the more he is benefited, this is obviously not true as to the lessee. Certainly a lessee would not be benefited by increasing the amount of rent to be paid, as would the lessor, but instead the lessee would be most benefited by obtaining a lower rate for him. It has been said: "Custom or usage relating to a particular business in order to be available for the purpose of determining the rights of the parties must be uniform, notorious and reasonable." (Gross on Real Estate Brokers, Sec. 220.) It is further stated by the same author: "The rules of a real estate board do not establish a custom or usage, for to do so would require that they be acted upon with uniformity, and be so generally known and established as to raise a fair presumption that they were known to the contracting parties so that they may be assumed to have contracted with relation to them, and with knowledge of them. It would also be necessary to show that the rate established by such a rule was reasonable and customary for such services." Not only was there no such evidence in this case but there were no rules applying to obtaining leases for a lessee. Therefore, we must hold that the schedule of the Real Estate Board of fees to be charged a lessor is not substantial evidence of what is a reasonable charge to be paid by a lessee to a broker for obtaining a lessor to lease to him; and that plaintiff's evidence was insufficient to support the judgment.
Furthermore, the usual and ordinary course of business is that a lessor, like the seller of real estate, pays the commission; and, of course, that is why the schedules of the Real Estate Board are set up on that basis. Plaintiff's claim is that defendant should pay him the amount of commission the lessor would have been required to pay under the schedules of the Real Estate Board; but to recover on that basis he would have to prove an express contract to pay that amount. (Gross, Sec's. 196, 198, 208; 12 C.J.S. 174, Sec. 79.) Plaintiff's own evidence shows that there was no such contract. Therefore, the judgment for plaintiff on that basis was clearly erroneous. Thus plaintiff's only right of recovery is on quantum meruit and to recover on that basis he must show not only that defendant employed him to obtain a lease from the owners of the Hope Building, and that he did so, but he must also show the reasonable value of the services he rendered and the result he accomplished. (See Murphy v. Knights of Columbus Building Co., 155 Mo. App. 649, 135 S.W. 446.) "In determining what is reasonable under the circumstances of a given case, the end accomplished, as well as the time and effort expended, by the broker, should be taken into consideration." (8 Am. Jur. 1071, Sec. 146.) We think the facts stated in the opinion of the Court of Appeals, with the other facts in the record, concerning the activities of the parties, constitute substantial evidence to show that plaintiff was employed to obtain a lease for defendant from the owners of the Hope Building and was the procuring cause of the lease being obtained. If so, he was entitled to some compensation. Of course, plaintiff's evidence is far from conclusive and defendant had substantial evidence to the contrary. Since the record shows plaintiff has rights growing out of the transaction (if his evidence is accepted as true), and has misconceived his remedy, we think it was proper for the Court of Appeals, in the exercise of its discretion, to remand the cause to permit the petition to be amended to clearly state a claim on quantum meruit so that the cause may be retried on that basis; and we take the same course.
The judgment is reversed and the cause is remanded to the trial court with directions to permit the plaintiff to amend his petition, if he so requests, and to retry the cause in conformity with the views herein expressed, or, if the plaintiff does not desire to amend his petition, then to render judgment for the defendant. All concur.