Smith v. Crane , 169 Mo. App. 695 ( 1913 )

ROBERTSON, P. J.

This suit was brought by the respondent as the administrator of the estate of Carey J. Smith, deceased, to recover the sum of $2500 alleged to be due on the following contract as set out in his petition:

‘ ‘ Carthage, Mo., Oct.' 29, 1910.

In consideration of C. J. Smith service in assisting in getting option and other service on Jesse Richardson in his 112. acres land on which the Quick Seven Mines are located in Jasper Co., Mo., we the undersigned hereby agree that in case of a sale of said land' or any part thereof by "W. S. Crane, H. E. Gerke or their associates time unlimited to pay to C. J. Smith of Carthage, Mo., or his successors the sum of ($2500) twenty-five hundred dollars in cash when the deal is made and we further agree to pay all bills and notes and expenses that has been made on this deal by either W. S. Crane, H. E. Gerke or C. J. Smith, and all future expense may be made hereafter including the $600 to Cunningham Nat. & Co. Above contract void if no deal is made by either of us or our associates.

W. S. Crane,

TI. E. Gerke.”

The judgment below was for the plaintiff and the defendants have appealed.

Prior to the date of the above contract various options had been given to C. J. Smith and the defendants, or to some of them,- by Richardson, but all of the options had expired prior to the transaction hereinafter discussed and the one upon which the plaintiff based his right to recover in this case.

C. J. Smith, one of the parties to the above contract, was dead at the date of the trial and the other two parties were by reason thereof disqualified from testifying.

Neither Smith, Crane nor Gerke owned' any interest in the land referred to in the contract and it is apparent that what may have been meant by a sale of the land by Crane and Gerke is that they should be the procuring and efficient cause of the sale of the land or some portion thereof by Bichardson to some one.

On November 21, 1910, after all of the options given by Bichardson on the land to either Smith, Crane or Gerke had expired, Smith and Crane went to Bichardson’s farm and made arrangements with him to meet them and one Morrison, a prospective purchaser, at a law office in Carthage on the next day. Bichardson and his wife, Smith, Crane and Gerke and Morrison met at said place the next day and at that time Bichardson and wife executed and delivered a warranty deed conveying to said Morrison an undivided one-sixth interest in the land referred to in the above contract, and at the same time Bichardson and his wife executed and placed in escrow in a bank in Carthage a deed to defendant Crane for an undivided one-sixth interest in the land, giving him ninety days in which to pay the purchase price and receive a deed; and Bichardson and his wife also at that time gave a written option to defendant Crane to purchase the remaining undivided two-thirds interest in the land within ninety days from that date.

It is agreed by all parties to this action that the defendants received nothing from the sale of the undivided one-sixth interest to Morrison, that the escrow deed to Crane was never taken down and that no sale was ever effected by defendants or either of them under the last named option.

The contention of plaintiff is that the above contract entitled 0. J.- Smith to the payment of the $2500 therein named when the transfer of said undivided one-sixth interest in the land was made to Morrison on November 22, 1910.

The case was tried to the jury and the defendants have preserved their objections and exceptions to the instructions given in behalf of plaintiff and to the action of the court in refusing certain instructions asked by them and to the exclusion of testimony. Among the instructions given in behalf of plaintiff was the following (except that the italics are added by us for the purpose of reference):

“The court instructs the jury that it is admitted by the defendants’ answer that the contract of date October 29, 1910, was executed by defendants, W. S'. Crane and TI. E. Gerke, whereby they agreed to pay to 0. J. Smith, now deceased, to assist in getting an option and rendering other services in consummating a sale of the land or a part of said land belonging to Jesse Richardson, to-wit, 112 acres situate in Jasper county, Missouri, on which lands the Quick Seven Mines are located; that by said contract so executed by the defendants, they agreed that in case of a sale of said land or any part thereof by the defendants or' their associates, they would pay to said 0. J. Smith the sum of $2500 in cash, when the deal was made, and pay other bills and notes as set forth in said written contract, and you are further instructed that if you find from the evidence that the deceased, C. J. Smith, rendered services to the defendants in procuring options from Jesse Richardson, giving them the right to purchase or sell said land or any part thereof, and that by his efforts and services rendered, the defendants were enabled to'make a sale of an undivided one-sixth interest in said land for the sum of $18,333, then and in that event, you are instructed that the deceased, C. J. Smith, performed his part of said contract and the plaintiff, as the administrator of the deceased, is entitled to recover of and from the defendants the price fixed by said contract, to-wit, $2500, and your verdict will be for the plaintiff for an amount not to exceed that sum, together with interest at the rate of six per cent per annum, from the date of the commencement of this suit, to-wit, the 31st day of October, 1911; unless you further believe from the evidence that afterwards for a valuable consideration the said C. J. Smith agreed with the defendants or either of them that he, the said Smith, was to receive no compensation under the contract sued on in this case by reason of the sale of the one-sixth interest to Genevieve Morrison, but that the said C. J. Smith should receive the compensation provided for in the contract sued on out of and from a sale of the two-thirds interest in the Richardson lands under the option given by said Richardson to W. S. Crane, bearing date November 22, 1910.”

The defendants asked and were refused the following instruction:

‘ ‘ The court further instructs the jury that the option from Richardson and wife under which the defendants and said Carey J. Smith were endeavoring to make a sale, expired at midnight of the 15th day of November, 1910, and if you further find that no sale or disposition of any part of said real estate was made under said option at that time; and if you further find that it was agreed between Carey J. Smith and defendants that the sale of the undivided one-sixth interest to Genevieve Morrison by Jesse Richardson and wife was not to be treated as a sale by the defendants, so as to render them liable under the contract sued on in this case, and that notwithstanding the said sale of the one-sixth interest to said Genevieve Morrison, the said Carey J. Smith was to receive the compensation provided in the contract sued on out of and from a sale of the two-thirds interest in the Richardson lands under the option given by the said Richardson and wife to W. S. Crane, bearing date November 22, 1910, you will find tbe issues in favor of tbe defendants.”

At the trial of tbe case Richardson and bis wife and tbe attorney, who drew tbe papers for tbe transfer of tbe one-sixtb interest to Morrison and tbe other papers covering tbe transaction narrated, testified that at that time tbe question as to anything being’ due Smith on account of tbe sale of the one-sixtb interest was discussed and it was repeatedly asserted that there was no compensation or sums of money coming to either Smith or Crane or Gierke by reason of this .sale to Morrison. From this and other testimony of tbe same character, tbe jury, may have found, under proper instructions, that there was either a release of tbe liability of defendants under tbe Smith contract as to tbe sale of tbe one-sixtb interest and a substitution of a sale under tbe new option in lieu thereof, or that tbe parties considered that tbe defendants bad not sold tbe land or some portion thereof within the meaning of tbe contract. This latter theory of tbe case is further corroborated by tbe fact that when one of tbe witnesses was undertaking to state what was said there in regard to no money being due to Smith, plaintiff’s counsel objected and stated, “There is no testimony to show that Crane bad any control over tbe deal. Tbe parties were there to sign tbe papers and pay tbe money,” and the court remarked, “Of course that is true. There is no showing that be bad any strings on tbe deal.” Thus presenting to our minds a construction of tbe contract with reference to tbe transfer of this interest to Morrison that should not have been ignored by tbe court in its instructions to tbe jury.

Also, under tbe terms, “said land or a portion thereof’'’ in tbe contract, tbe jury may have concluded from tbe testimony that tbe parties did not consider that, a sale of an undivided one-sixtb interest therein was a sale of a part thereof.

The testimony as to what was said to, and in the presence of, Smith and acquiesced in by him furnishes strong evidence as to the construction that the parties themselves placed upon this contract as to what should constitute a sale thereunder by the defendants. The record discloses that the parties to this litigation in the trial of the case properly treated the contract involved as one which was subject to construction aliunde. When a contract of this character is involved, courts of this State have uniformly held that the construction placed thereon by the parties themselves by words and conduct is a proper guide and of more importance than an abstract meaning that a court may attach to it by reason of its mere phraseology. [Patterson v. Camden, 25 Mo. 13, 21; Union Depot Co. v. Railway Co., 131 Mo. 291, 305, 31 S. W. 908; Moran Bolt & Nut Co. v. St. Louis Car Co., 210 Mo. 715, 736, 109 S. W. 47; Tetley v. McElmurry, 201 Mo. 382, 394, 100 S. W. 37; Sawyer v. Sanderson, 113 Mo. App. 233, 250, 88 S. W. 151; Ellis v. Harrison, 104 Mo. 270, 279, 16 S. W. 198; Gaslight Co. v. City of St. Louis, 46 Mo. 121.]

The construction of a contract containing ambiguous phrases is for the jury when it depends on extrinsic, unconeeded facts. [Wilcox v. Baer, 85 Mo. App. 587; Deutmann v. Kilpatrick, 46 Mo. App. 624; Elevator & Mfg. Co. v. Mertz & Hale, 107 Mo. App. 28, 80 S. W. 684.]

- It is, therefore, apparent that the court erred in refusing the instruction above quoted asked in behalf of the defendants.

The italicized words, “and rendering other services in consummating a sale” in plaintiff’s instruction assumes an obligation on the part of Smith that is not so stated in the contract. Under this instruction and the testimony the jury may have concluded that the part which Smith took in getting Bichardson and his wife to come to Carthage and Smith’s participation' in the transactions there were services rendered in consummating a sale for which he should be compensated. The instruction was wrong in assuming that the “other ¡service” meant “consummating a sale.”

As the case may be tried again we call attention to further errors in said instruction No. 1 and also in instruction numbered 2, given in behalf of plaintiff. They authorize the jury to find for the plaintiff on account of the sale of the one-sixth interest to Morrison unless the jury further finds that subsequent to said sale a new contract based on a valuable consideration was made releasing defendants from the obligation of their contract with Smith. If there was a substitution of the new arrangement .for anything the parties may have relinquished under the old, and if it was contemporaneous with the transaction of the sale of the one-sixth interest in the land of Morrison and the taking of the new option and the escrow to Crane, the mutual promises incident thereto would constitute the consideration. [Mulliken v. Haseltine, 160 Mo. App. 9, 13, 141 S. W. 712; Welch v. Mischke, 154 Mo. App. 728, 734, 136 S. W. 36.] Thus it is apparent that said instructions one and two, by using the words “afterwards,” “subsequent” and “for a valuable consideration,” have imposed on the defendants an unfair burden and deprived them of a defense to which, under the testimony, they were entitled. Under these instructions the substituted contract theory was entirely segregated from the transaction which would have constituted the consideration, and the jury directed to search for a consideration of which there was no evidence, namely, some consideration other than that based on the “very substitution of the new contract for the old,” as stated in the Welch case, supra.

At the trial of the case portions of Mrs. Richardson’s testimony as to what was said at the time the papers were being prepared relative to no commissions being due on account of that deal with Morrison were stricken out by tbe court. This was erroneous.

By reason of the error committed in excluding the testimony of Mrs. Richardson and the error incident to the instructions, the judgment of the circuit court is reversed and the cause remanded with directions to set aside the judgment in favor of the plaintiff and to grant the defendants a new trial. Reversed and remanded.

Sturgis, J., concurs. Farrington, J., not sitting.