Warren Commission & Investment Co. v. Hull Real Estate Co.

BLAND, P. J. (after stating the facts.) 1. At the close of plaintiff’s evidence and again at the close of all the evidence, defendant offered an instruction in the nature of a demurrer to the evidence. The court refused to grant either of these instructions. This ruling is assigned as error on the ground that there is no evidence tending to show that plaintiff was authorized to sell the [437] property as the agent of defendant. The evidence is all one way, and in fact it appears by defendant’s evidence, that the Hull Company was the authorized agent of the defendant to sell the property, and that the Hull Company, through its chief officer, agreed with plaintiff that it might sell the property and receive, as compensation for its services, one-half the usual commission of two and one-half per cent of the selling price, and that the defendant was not only apprised of this arrangement but ratified it by recognizing plaintiff as its authorized agent to sell. the property. A sale was negotiated by plaintiff on the terms and for the price agreed upon, and while the Hull Company’s letter of September twenty-seventh stated the terms of the sale were subject to change, no ehange was made or suggested until after the sale was negotiated, too late to defeat plaintiff’s claim for the agreed commission. It is also contended that plaintiff’s contract was with the Hull Company and not with defendant, and that it should look to the Hull Company for its commission. This would be so but for the fact the contract made by the Hull Company with the plaintiff was ratified and adopted by defendant. 2. The evidence fails to show that plaintiff made any demand on defendant for the amount sued for (three hundred and seventy-five dollars) prior to the commencement of the suit. The court, nevertheless, allowed interest from the date the commission became due, amounting to sixty dollars. This was error. [Shinn v. Wooderson, 95 Mo. App. 6, 75 S. W. 687; Patterson v. Missouri Glass Co., 72 Mo. App. 492.] The commencement of the suit before the justice, however, was a sufficient demand to entitle plaintiff to interest from that date. The suit was commenced November 27, 1902, and judgment was rendered in the circuit court on June 2, 1903. The interest from the date of the commencement of the suit to the rendition of the judgment, at the legal rate, on three hundred and seventy-five dollars would [438] be eleven dollars and thirty-five cents. Therefore, the judgment is for forty-eight dollars and fifteen cents more than plaintiff is entitled to recover, wherefore it is considered that unless within ten days from the date of the filing of this opinion the plaintiff remit forty-eight dollars and fifteen cents, the judgment will be reversed and the cause remanded; if a timely remittitur be entered the judgment for the remainder, three hundred and eighty-six dollars and eighty-five cents will stand as affirmed. All concur.