Opinion
March 16, 1933.
1. BROKERS: Commission. In an action for an agent's commission for selling real estate, the jury could find from the evidence that one who held title to the property as trustee in fact acted as agent for defendant in signing a contract for a commission.
2. PLEADINGS: Petition. In considering an objection to the introduction of testimony on the ground that the petition failed to state a cause of action, the petition must be given "a most liberal construction."
3. PLEADINGS: Petition: After Verdict. In an action for a commission for selling real estate the petition which does not in terms allege a promise to pay a commission but alleges facts from which such promise may be implied is good after verdict.
4. TRIALS: Instruction: Promise to Pay. In an action for a commission for selling real estate an instruction for plaintiff which did not in terms require a finding that defendant promised to pay a commission was not prejudicial when it required a finding of the facts alleged in the petition was necessary to a verdict.
Appeal from Circuit Court of City of St. Louis. — Hon. Charles W. Rutledge, Judge.
AFFIRMED.
Foristel, Mudd, Blair Habenicht for appellants.
(1) The failure of appellants to refile to the amended petition their answer on file to the original petition (a mere oversight) did not put them in default, since the two petitions, so far as they charge appellant Community Estate, Inc., are, in substance, the same, and the answer tendered an issue and was not withdrawn. Bremen Bank v. Umrath, 55 Mo. App. 48; State ex rel. v. Taylor, 200 Mo. App. 333; Sherrer v. Waltner, 29 S.W.2d 193. (2) There was no evidence connecting either of these appellants with any promise to pay commission, and hence their demurrer to the evidence should have been sustained, and it is error to overrule it. Milliken v. Commission Co., 202 Mo. 637; State ex rel. v. Goetz, 131 Mo. 675. (3) The petition omits an essential element of a cause of action as against these appellants, to-wit, any promise by them or either of them to pay a commission to plaintiff, and hence fails to state a cause of action against either of them. R.S. 1929, sec. 764. (4) Plaintiff's Instruction 1 is erroneous in directing a verdict against all defendants, in that it fails to require the jury to find that either of these appellants ever employed plaintiff or promised to pay him any commission. No such employment or promise was either pleaded or proven, and, hence, the instruction erroneously directed a verdict upon facts insufficient in law to cast a liability upon these appellants. Thomas v. Babb, 45 Mo. 384; Smith v. Williams, 221 S.W. 360.
Bryan, Williams, Cave McPheeters and A.C. Britt for respondent.
(1) The petition states a cause of action against the Community Estate, Inc., and Conrad Paeben, its receiver, even as against a demurrer, had one been filed, and when construed most strongly against the pleader. This is demonstrated by a digest of the petition set out in our statement, supra. (2) Even were this not true, no demurrer to the petition was, in fact, filed; but objection to the petition was first made on the introduction of testimony. This being so, such objection must be disallowed if (by reasonable intendment or fair implication from the facts stated or by most liberal construction) the essential allegations may be pieced out or made clear by reasonable inference. Applegate v. Railroad, 252 Mo. 182; Morrow v. Mo. Gas Elec. Ser. Co., 315 Mo. 380; Finley v. Williams, 325 Mo. 694; Timmerman v. Arch. Iron Co., 318 Mo. 429. (3) When read in this light any possible objection that the petition failed to state a cause of action must at once disappear. This for the reason: (a) In case agency is required to be alleged, an express averment of such agency is not necessary if the facts constituting an agency are set forth as they are in this petition. 2 C.J. 905. (b) Agency includes any relation in which one person has authority to act for another. It does not depend upon express appointment but may be implied from the circumstances in the case. Here the petition expressly alleges the facts constituting the agency of Hunsche and from which such agency must of necessity be implied. The petition alleges that he was holding title to the property for the account of the Community Estate, Inc. He was, therefore, holding it as their agent. Noren v. School of Osteopathy, 28 S.W.2d 215; American Ry. Ex. Co. v. Scanlon, 247 S.W. 254; Phillips v. Geiser Mfg. Co., 129 Mo. App. 401. (c) There is no magic in the mere name of a thing. The true relationship of the parties will be determined — whether that of agency or no — regardless of the name they may have given thereto. 2 C.J. 425; Trotter v. Grand Lodge, etc., 7 L.R.A. (N. S.) 572. (d) An action can be maintained against a receiver of a corporation although the act creating the liability of the corporation occurred prior to the appointment of the receiver. Combs v. Smith, 78 Mo. 32. (4) The defense that an agent exceeded his authority is affirmative and must be pleaded. Berberet v. Meyers, 240 Mo. 358. (5) A contract in the name of an agent nevertheless binds the principal. Beckwith v. Massillon R.M. Co., 190 Mo. App. 21; Gordon v. Andrews, 2 S.W.2d 809.
Plaintiff is a real estate agent. He seeks payment for services in selling (by way of exchange) certain real estate held in trust by George R. Hunsche for the use and benefit of Elvin O. Wells, Nora F. Wells and the Community Estate, Inc. He instituted two suits on a contract to recover for said services. He sued the Community Estate, Inc. Thereafter Conrad Paeben was appointed receiver of said corporation and as such was made defendant in said suit. He also sued Elvin O. Wells, Nora F. Wells, George R. Hunsche, Trustee, and George R. Hunsche. In the circuit court the cases were consolidated. The answer of the Community Estate, Inc., and Conrad Paeben, its receiver, was a general denial. Defendants Wells defaulted. Plaintiff dismissed as to George R. Hunsche, and the answer of George R. Hunsche, trustee, is not material to a determination of the questions presented. Judgment was against all the defendants for $20,971.65. Defendants Conrad Paeben, receiver, Community Estate, Inc., and George R. Hunsche, trustee, appealed. The appeal was abandoned by Hunsche, trustee. Therefore, only the assignments of error of Conrad Paeben, receiver, and the Community Estate, Inc., are for consideration.
I. They contend there was no evidence connecting them with any promise to pay a commission for the sale or exchange of the property. There was evidence tending to show the following:
Defendants Wells owned certain land. On this land they were constructing buildings. The Community Estate, Inc. (hereinafter designated company), of which Hunsche was president, loaned them money to so improve the property. Certain loans were secured by first and second deeds of trust. But they owed the company money loaned to them for said purpose, which was not secured. About this time Hunsche learned that defendants Wells had sold and conveyed a part of the property subject to the deeds of trust. He reported the matter to Conrad Paeben, then vice-president of the company, and they agreed that suit should be instituted by the company against defendants Wells. At this time the board of directors of the company adopted a resolution giving Hunsche, the president of the company, "full authority to settle up the matter as best he knew how." Thereupon Hunsche caused the company to file suit to set aside the conveyance and to establish an equitable lien on all the property for the unsecured money loaned to defendants Wells and used by them to construct the buildings on the land. Thereafter the suit was dismissed on the execution of a contract which settled the differences between the parties. The contract was signed by defendants Wells, George R. Hunsche and the Community Estate, Inc., by George R. Hunsche, president. As provided in the contract the company repurchased for defendants Wells the property sold by them and charged the purchase price to the account of said defendants, who then conveyed all of said land to Hunsche as trustee to hold for the benefit of the company and defendants Wells "as their interest may eventually appear under the terms of this contract." The contract authorized the company to collect the rents from the property and apply same to payment on interest due on the loans. It provided that a sale of the property should not be made except by consent of defendants Wells, Hunsche, trustee, and the company. It also provided that from the proceeds the expense of sale, including the sales commission, as adopted by the St. Louis Real Estate Exchange, if any, should be paid; then all encumbrances not assumed by the purchaser should be paid, and then the remainder should be paid on unsecured indebtedness of defendants Wells to the company.
After the execution of this contract plaintiff proposed that he take charge of the property and be given authority for one year to sell same for a commission of five per cent on all sales. Defendant E.O. Wells referred him to Hunsche, trustee, who agreed to the proposition but objected to a sales agency for more than ninety days. He told plaintiff that if he would take charge of the property they would clean up the buildings. Thereupon Wells, by contract in writing, authorized plaintiff to take charge of the property and sell same within ninety days for said commission. On the same day plaintiff exhibited this contract to Hunsche. Thereafter plaintiff moved his office to one of the vacant buildings on the land and with help furnished by the parties interested cleaned up the buildings and premises. He rented part of the property and collected the rent. For sometime he made efforts to sell or exchange the property, but could not interest Hunsche, trustee, and the company. Finally he did interest them in an exchange for certain property. After an examination of this property by Hunsche, and after the board of directors of the company approved an exchange for said property, Hunsche notified plaintiff to prepare a contract of exchange of the properties. Plaintiff did so and the contract was signed by defendants Wells and Hunsche, trustee. After this contract was signed, plaintiff reported to Hunsche that the other parties to the exchange refused to pay the commission. Hunsche then said that the company would have to pay the commission and charge it to the account of defendants Wells. He asked to again see plaintiff's contract with Wells for a commission. Plaintiff exhibited the contract. Thereupon and before the exchange was consummated an agreement as to the payment of plaintiff's commission was written in a copy of the contract, as follows:
"George R. Hunsche, trustee, to pay said Hawkins, as agent, a cash commission as soon as deal is closed, as per contract with said E.O. Wells.
"All the above changes satisfactory."
After this change was made in that copy of the contract, defendants Wells and Hunsche, trustee, again signed that copy of the contract.
From this evidence the jury could find that while Hunsche held title as trustee, he was in fact the agent of the company to care for its interest in the property, sell same and apply the proceeds as directed in the contract. In other words, they could find that Hunsche acted for the company in signing the contract to pay plaintiff the commission. In this connection it should be stated that the company did not claim that Hunsche exceeded his authority by signing the contract to pay the commission. Furthermore, the contract between the parties anticipated the payment of a commission, the amount of which was fixed by the rules of the St. Louis Real Estate Exchange. The company does not contend that the amount of five per cent is not in accordance with the rules of said exchange. Furthermore, the amount fixed by said rules could be changed by the parties. We think there was evidence tending to show that the company agreed to pay a five per cent commission.
[2, 3] II. They next contend that the petition does not state a cause of action because it does not alleged that they promised to pay the commission.
They did not file a demurrer to the petition but relied on an objection to the introduction of testimony. In this situation the petition must be given "a most liberal construction." [Morrow v. Mo. Gas Elec. Service Co., 315 Mo. 367, l.c. 380, 286 S.W. 106; Applegate v. Railroad, 252 Mo. 173, l.c. 182, 158 S.W. 376; Finley v. Williams, 325 Mo. 688, l.c. 694, 29 S.W.2d 103.] The petition does not in terms allege that they promised to pay the commission. However, it does allege the facts above set forth, and by implication from said facts alleges that the company so promised. We hold the petition to be good after verdict.
III. They next contend that an instruction given at the request of plaintiff was erroneous in that it did not require a finding that they promised to pay the commission.
The instruction did not in terms require the jury to so find. However, under the instruction a finding of the facts alleged in the petition was necessary to a verdict for plaintiff. The instruction could not have been prejudicial, and the contention is overruled.
The judgment should be affirmed. It is so ordered. All concur.