Kraehe v. Neumeister , 81 Mo. App. 433 ( 1899 )

BLAND, J.

Plaintiff began' his suit in a justice’s court by filing a petition therein containing two paragraphs, the first of which alleged in substance, that plaintiff is a real estate agent; that the defendant was the owner of certain described real estate in the city of St. Louis, valued at $24,000; that defendant employed plaintiff to sell or exchange his real estate, agreeing to pay a reasonable compensation therefor; that in pursuance of his said employment plaintiff did negotiate an exchange of defendant’s city property at a valuation of $24,000 for a farm in the state of Illinois, and that the exchange was made by proper conveyances; that a reasonable compensation was two and one-half per cent, on the valuation of defendant’s city property. The second paragraph alleges that after the negotiations were made but before the exchange was consummated, plaintiff agreed to take and defendant agreed to pay $500 for plaintiff’s services. On a trial do novo in the circuit court it was shown that plaintiff negotiated an exchange of defendant’s city property for a farjn in Illinois, and that the exchange was consummated by an exchange of deeds of conveyance between the owners of the respective properties. The evidence offered on behalf of plaintiff tended to prove that the plaintiff agreed to take and the defendant agreed to pay $500 as compensation to plaintiff for negotiating the trade. The evidence offered by the defendant tended to prove that plaintiff, to earn the $500 agreed and undertook, not only to exchange the defendant’s city property for the farm, but also to re-exchange the Illinois farm for other city property, and that no commission or compensation should become due until the latter exchange was made, and that the latter exchange had not been made. Plaintiff offered evidence in rebuttal of this contention of the defendant. The court at the instance of defendant gave the following instruction:

“I. The court instructs the jury that if they find from the evidence that the plaintiff made a contract with defendant by which he was to receive five hundred dollars for his services in making sale or trading his (defendant’s) St. Louis property for farm in Madison county, Illinois, and that plaintiff was then to secure a trade for said farm for property on Washington avenue, St. Louis, Mo.; then plaintiff is not entitled to recover in this action unless the jury further find that plaintiff did secure a sale or trade of such farm for defendant.”

“2. The court instructs the jury that unless they find from the evidence that an agreement was made by and between plaintiff and defendant, by which defendant was to pay plaintiff five hundred dollars for his services, they will find for defendant.”

No other instructions were asked or given. The jury found for plaintiff and assessed his damages at, $500. After unavailing motions for new trial and in arrest, defendant appealed.

Under the evidence and instructions the jury found that the contract to pay $500 was not dependent upon a re-exchange of the farm for other city property, as contended for by the defendant. There was evidence to support this finding, and the verdict is conclusive as to that issue in this court.

The exceptions saved as to the admission and rejection of testimony, were taken as to immaterial matters — matters that could not, one way or the other, have influenced the finding of the jury. They are devoid of merit, as they could not have changed the result.

No reversible error appearing in the record, we affirm the judgment.

All concur.