the term, payable in monthly installments. MASON et al. v. JAMES M. CARPENTER The suit proceeds for a commission of oneREALTY CO. (No. 14110.) half of 1 per cent. on the amount of rental thus reserved.

The evidence tends to prove that plaintiffs,

(St. Louis Court of Appeals. Missouri. Nov. 2, 1915. Rehearing Denied Nov. 23, 1915.) 1. BROKERS 88-REAL ESTATE BROKERS-acting through Mr. Trepp, visited Julius F. ACTION FOR COMMISSION-QUESTION FOR JURY.

In an action by a firm of real estate brokers for a commission, whether it or another agency was the efficient and procuring cause in effecting defendant's lease to a third party held for the jury.

[Ed. Note. For other cases, see Brokers, Cent. Dig. 88 121, 123-130; Dec. Dig. 88.1

2. BROKERS 53-REAL ESTATE BROKERSRIGHT TO COMMISSION.

Where the owner of realty placed it in the hands of two real estate firms to lease, and one of such firms was the efficient and procuring cause of effecting the lease, the other firm had no claim against the owner for a commission, even though its efforts aided to some extent the final consummation of the lease by the leasing

firm.

[Ed. Note. For other cases, see Brokers, Cent. Dig. § 74; Dec. Dig. 53.]

Schultz, the local manager of the Regal Shoe Company, a number of times and endeavored to persuade him to lease this property. There is evidence, too, that Mr. Martin and Mr. Breitt, representing the Holbrook-Blackwelder Real Estate Trust Company, visited Mr. Schultz a number of times, urging a lease of the same property. Schultz was the local manager of the Regal Shoe Company, but not authorized to enter into a contract of lease. It appears that Mr. Gould, the assistant treasurer of the shoe company, was in authority concerning such matters. Plaintiffs never, at any time, saw Mr. Gould concerning this matter, though it is clear that they negotiated with and submitted propositions to Schultz. Plaintiffs also introduced Mr. Carpenter, defendant's vice president, to Schultz

Appeal from St. Louis Circuit Court; Wm. and induced Mr. Carpenter to submit a writT. Jones, Judge.

"Not to be officially published."

Suit by C. Homer Mason and Martin F. Trepp, copartners doing business as the Mason-Trepp Real Estate Company, against the James M. Carpenter Realty Company. Judgment for plaintiffs, and defendant appeals. Reversed, and cause remanded.

E. W. Banister, of St. Louis, for appellant. Arnstein & Arnstein, of St. Louis, for respondents.

NORTONI, J. This is a suit by a real estate broker for commissions. Plaintiff recovered, and defendant prosecutes the appeal.

[1] Defendant, James M. Carpenter Realty Company, was preparing to erect a building at 312-314 North Sixth street in St. Louis and desired to procure a reliable tenant therefor. It is conceded that defendant employed plaintiffs to procure such tenant for it and it appears to be conceded, too, that it employed the Holbrook-Blackwelder Real Estate Trust Company to the same end. A commission was to be paid the broker in event a lease was effected. It appears that defendant furnished plans of its building to both plaintiffs, Mason and Trepp, copartners in the real estate business in St. Louis, and likewise furnished plans to the HolbrookBlackwelder Real Estate Trust Company for the purpose of showing them to probable tenants. Both of these real estate agencies were engaged in an effort to lease the premises for defendant, and it seems that both were endeavoring to induce the Regal Shoe Company to enter into such lease, but neither knew of the activities of the other for a time. Finally the Regal Shoe Company leased the premises from defendant for a term of 20 years at a stipulated rental of $270,000 for

ten proposition to the Regal Shoe Company through Schultz. On the other hand, Martin and Breitt, acting for the Holbrook-Blackwelder Real Estate Trust Company, negotiated directly with Mr. Gould of the Regal Shoe Company. Finally, when the lease was negotiated, defendant paid the Holbrook-Blackwelder Real Estate Trust Company its commission in the view that such company, through Martin and Breitt, had effected the lease with Gould for the shoe company and declined to pay plaintiffs. It therefore appears that the evidence reveals conflicting claims on the part of the two real estate agencies as to which was the procuring cause of the lease. There is an abundance in the evidence tending to prove that the HolbrookBlackwelder Real Estate Trust Company, acting through Martin and Breitt, effected the lease, and there is substantial evidence, too, tending to prove that the plaintiffs, Mason and Trepp, were the procuring cause. Although it be true that neither Mason nor Trepp ever met Gould, the officer of the Regal Shoe Company authorized to lease the property, the evidence tends to prove that their propositions were first submitted to Gould through the medium of Schultz, and it is quite clear that plaintiffs interested Schultz in the location and the building. It appears that Schultz, although local manager for the shoe company, was without authority to negotiate a lease but received proposals for the Regal Shoe Company and submitted them to his superior officer, Mr. Gould. Schultz was interested too, in the location of the business as he received, besides his salary, a commission on sales. We regard the question as to which one of these agencies was the efficient and procuring cause in effecting the lease as one for the jury, and it appears to be con

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ceded on the part of defendant that both did to some extent aid in the leasing of said agents were authorized by it to find a tenant property"

on the terms prescribed. However, the com--and substituted for these words the folmission was to be paid only to the broker lowing:

who succeeded in effecting the lease. The "Plaintiff Trepp made efforts to interest the central question in this case, as in all others witness Schultz in said property and thereby wherein claims for commissions are present-same." to induce the Regal Shoe Company to lease

ed by two different brokers on account of the The instruction as requested properly desame transaction, is: Which effected the clared the law of the case, for if the Hollease? or, as the phrase goes, Which was the brook-Blackwelder Real Estate Trust Comefficient and procuring cause in consummat-pany, through Martin and Breitt, were the ing it? See Gamble v. Grether, 108 Mo. App. 340, 83 S. W. 306. In this connection it is said the broker must be the procuring cause of the contract of sale or lease on which he depends for recovery. It will not suffice for his act to be one of a chain of causes producing the contract; it must be the procuring or inducing cause or, as has been said, it must be the causa causans. Ramsey v. West, 31 Mo. App. 676; Mead v. Arnold, 131 Mo. App. 214, 110 S. W. 656.

[2] It is argued that the court, through giving and refusing instructions, ignored this principle and treated the case as though it was no defense against the claim of the plain

tiffs if the Holbrook-Blackwelder Real Estate Trust Company, through Martin and Breitt, procured the leasing of the property if the matter were aided, to some extent, by the efforts of plaintiff, and we are persuaded to this view. Obviously, if the HolbrookBlackwelder Real Estate Trust Company, through Martin and Breitt, were the efficient and procuring cause of effecting the lease, then such was a valid defense against plaintiffs' claim, and this is true though their efforts in endeavoring to lease the premises to the same tenant aided the final consummation of the lease to some extent. See Real Estate Co. v. Real Estate Co., 144 Mo. App. 620, 129 S. W. 419. Touching this matter, defendant requested the court to instruct the jury as follows:

procuring cause in effecting the lease, then the verdict should be for defendant, even though the efforts of plaintiff Trepp to interest Schultz and induce the Regal Shoe Company to take the property on the terms proposed did to some extent aid in the leasing of such property. Manifestly, this is true, for the mere aiding to some extent, without more, in the leasing of the property amounted to no more than a link in the chain of causation, while the central question on which the liability of defendant turns is as to who was the procuring and efficient cause. The instruction as given after modification by the court is as follows:

"The court instructs you that the burden is on the plaintiffs to prove to your reasonable satisfaction by a preponderance of the evidence of the lease from the James M. Carpenter Realthat they are the efficient and procuring cause ty Company to said Regal Shoe Company, which has been read in evidence, and if you believe and find from the evidence that plaintiffs said Regal Shoe Company's leasing the property were not the efficient and procuring cause of described in said lease, but that such leasing was brought about by the Holbrook-Blackwelder Real Estate Trust Company through the efforts and exertions of the witnesses Martin and Breitt, or either of them, then your verdict must be for the defendants, even though you may believe and find from the evidence that the ness Schultz in said property and thereby to plaintiff Trepp made efforts to interest the witinduce said Regal Shoe Company to lease same."

From the modification of the instruction, it "The court instructs you that the burden is appears the court entertained the view that on the plaintiffs to prove to your reasonable it was a defense to the suit if the Holbrooksatisfaction by a preponderance of the evidence Blackwelder Real Estate Trust Company that they were the efficient and procuring cause of the lease from the James M. Carpenter Real- were the procuring cause of the lease only ty Company to said Regal Shoe Company, in event plaintiff Trepp made efforts to inwhich has been read in evidence, and if you terest Schultz of the Regal Shoe Company in believe and find from the evidence that plaintiffs were not the efficient and procuring cause of the property, and that such efforts did not said Regal Shoe Company leasing the property go to the extent of aiding to some extent in described in said lease, but that such leasing was brought about by Holbrook-Blackwelder Real Estate Trust Company through the efforts and exertions of the witnesses Martin and Breitt, or either of them, then your verdict must be for the defendants, even though you may believe and find from the evidence that the efforts of the plaintiff Trepp to interest the witness Schultz in said property and thereby induce said Regal Shoe Company to lease same, did to some extent aid in the leasing of said property."

the final consummation of the lease. Defendant was entitled to the proposition requested in the instruction to the effect that it was a valid defense to the action if the HolbrookBlackwelder Real Estate Trust Company were the efficient and procuring cause of the lease, and this, too, even though the efforts of plaintiff to some extent aided in consummating the transaction.

The court refused this instruction as reBecause of the error in refusing the inquested; also the court modified the instruc- struction as requested, the judgment should tion by eliminating therefrom the concluding be reversed and the cause remanded.

words as follows:

so ordered.

It is

REYNOLDS, P. J., and ALLEN, J., con

"Efforts of the plaintiff Trepp to interest the witness Schultz in said property and thereby

"stating such loss or destruction" is filed GRAVES et al. v. METROPOLITAN LIFE with it, and it seems to be conceded by coun

Appeal from St. Louis Circuit Court; Wm. distinctly held that a judgment rendered by T. Jones, Judge.

REYNOLDS, P. J. This case is before us this decision applies alone to notes. That is on a rehearing.

[1] The action was commenced before a justice of the peace on an insurance policy alleged to have been destroyed. The statement filed before the justice is not in the abstract, but on appeal to the circuit court an amended statement was filed, including a new party and again averring that the policy in suit had been destroyed-burnt. This amended statement is not verified either by plaintiffs or by any one else-no affidavit stand.

The judgment of the circuit court should | $1,646.01 against the Ozark Cooperage Comtherefore be reversed and the cause remand- pany, a Missouri corporation. The petition ed with directions to the circuit court to al- does not disclose the date of the rendition of low plaintiff to take a nonsuit; or failing such judgment, though it is averred that the that, the court will enter an order dismissing suit in which the same was rendered was inthe case. But as the Kansas City Court of stituted on February 23, 1905. It is averred Appeals, in Mansur v. Linney, 162 Mo. App. that while plaintiff's aforesaid suit was pend260, 144 S. W. 872, as well as in Watkins ing in the United States Circuit Court, to v. Brotherhood of American Yeomen, 188 Mo. wit, on April 20, 1905, the defendant thereApp. 626, 176 S. W. 516, decisions subsequent in, referred to in the petition as "Ozark Coopto that of the Supreme Court in Hudson v. erage Company No. 1," transferred its assets Wright, supra, has, as we understand its to the Ozark Cooperage Company of St. decisions, held to the contrary, this cause, Louis, Mo., referred to in the petition as together with the original transcript therein "Ozark Cooperage Company No. 2," likewise must be and is hereby certified and trans- a Missouri corporation; and it is alleged ferred to the Supreme Court. that there was a "pretended dissolution" of the original corporation. It is averred that the latter was "at the time of said pretended dissolution * * a large and prosperous corporation having assets of more than fifty

NORTONI and ALLEN, JJ., concur.

WALKER v. OZARK COOPERAGE & LUM- thousand dollars ($50,000.00) over and above BER CO. OF NEW JERSEY. (No. 14063.)

its liabilities." Further allegations are made with which we are not now concerned, and it

(St. Louis Court of Appeals. Missouri. Nov. 2, is then alleged that later "Ozark Cooperage

1915.)

1. COURTS 231 MISSOURI COURT OF AP-
PEALS JURISDICTION.
Where a creditor, who had obtained judg-
ment against a Missouri corporation for $1,600,
sought to have a receiver appointed to take over
the assets of the corporation and its successors,
claiming that the corporate assets, which ex-
ceeded its liabilities by over $50,000, had been
fraudulently transferred to a second corporation,
and by that to a third, the right involved is one
involving a sum in excess of the jurisdiction of
the Court of Appeals.

[Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 487, 491, 644, 646-648, 650, 652-659, 661; Dec. Dig. 231.]

Company No. 2" transferred all of the assets obtained by it from "Ozark Cooperage Company No. 1" to "Ozark Cooperage & Lumber Company of New Jersey," a New Jersey corporation, which had been licensed to transact business in the state of Missouri. It appears that all of the said corporations were originally named as defendants, as well as certain individuals alleged to have been officers and directors of the three companies, but that the suit was dismissed as to all defendants, except the Ozark Cooperage & Lumber Company of New Jersey, respondent

2. COURTS 487- MISSOURI COURT OF AP- herein. PEALS-TRANSFER OF CAUSES.

Where the sum involved appears to be in excess of its jurisdiction, the Court of Appeals should on its own motion transfer the cause to the Supreme Court.

[Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 703, 1307-1315; Dec. Dig. 487.] Appeal from St. Louis Circuit Court; Eugene McQuillin, Judge.

Action by George W. Walker against the Ozark Cooperage & Lumber Company of New Jersey and others, dismissed except as to the named defendant. From a judgment for the named defendant, plaintiff appeals. Transferred to Supreme Court.

John A. Harrison, Henry B. Davis, and Erd & Massey, all of St. Louis, for appellant. George B. Webster, of St. Louis, for respond

The petition charges that the transfers of the assets aforesaid were without consideration, and were fraudulently made by the officers and directors of said corporations for the purpose of hindering, delaying, and defrauding the plaintiff; and it is alleged that the assets of the two Missouri corporations have been fraudulently "intermingled and commingled," so that the same "cannot be disentangled, separated, reached, or set apart by the ordinary process of law," but that the sum of $7,000 was on deposit in the National Bank of Commerce of St. Louis to the credit of the Ozark Cooperage & Lumber Company of New Jersey at the time of the filing of the petition. The prayer of the petition is as follows:

"Wherefore plaintiff prays that this court will order, decree, and appoint one receiver for said Ozark Cooperage Companies, Nos. One (1) and Two (2), respectively, and said Ozark Cooperage & Lumber Company of the State of New Jersey, to impound all the assets of said companies, and to disentangle all the assets of all of said companies, and take charge of the affairs of said three corporations, and apply, out of the assets of said Ozark Cooperage Company No. One (1), now intermingled as aforesaid, so much thereof as will pay plaintiff's said judgment, with interest and costs; and that the defendant herein, the said Ozark Cooperage & Lumber

transfer to the Supreme Court of all causes wherein any reasonable doubt exists touching our jurisdiction. This enables the parties to have the question of jurisdiction set finally at rest in the particular case by filing a motion to remand, and obtaining the views of the Supreme Court on such motion."

Company of New Jersey, be restrained and en- [ "Our uniform practice has been to order the joined from drawing any check or checks upon the fund aforesaid, now on deposit in said National Bank of Commerce, in St. Louis, and that said bank be restrained and enjoined from paying out any moneys on said checks; and that the affairs of the said Ozark Cooperage & Lumber Company of New Jersey, said abovedescribed fraudulent corporation, be wound up, and that it, and its officers and servants, be forever restrained and enjoined from further doing business in the state of Missouri. And that the affairs of said Ozark Cooperage Company No. One (1), and of said Ozark Cooperage Company of St. Louis, Missouri, being Company No. Two (2), be finally wound up by this court, and that plaintiff recover his claims out of said assets, and for such other and further and general relief, whether of the same or of a different nature, as to the court may seem meet and proper."

It is therefore ordered that the cause be transferred to the Supreme Court, upon the ground that the amount involved is beyond our jurisdiction.

REYNOLDS, P. J., and NORTONI, J., con

cur.

PICKEL v. PICKEL. (No. 14750.) (St. Louis Court of Appeals. Missouri. Nov. 2, 1915.)

APPEAL AND ERROR 936-REVIEW-PRE

SUMPTIONS.

The action of the trial court is always premust show it; hence an award of a lump sum sumed correct, and the party assigning error for attorney's fees must, where there were numerous items, be presumed to have been only for those services for which compensation could be awarded.

Error, Cent. Dig. §§ 3782, 3787; Dec. Dig.
[Ed. Note.-For other cases, see Appeal and
936.]

2. APPEAL AND ERROR

MISSION OF EVIDENCE.

846-REVIEW-AD

In an action tried to the court, the erroneous admission of evidence will be disregarded, unless it appears to have affected the decision. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3347-3362, 3366; Dec. Dig. 846.]

[1] It appears that the case is one without the appellate jurisdiction of this court. At any rate we have such great doubt as to our 1. jurisdiction that we think it our duty to transfer the cause to the Supreme Court. While the amount of plaintiff's claim-i. e., the amount for which plaintiff obtained judgment against the original corporation-is within the pecuniary limit of our jurisdiction, the object of the suit is to have a receiver appointed to take charge of all of the aforesaid assets alleged to have been ultimately transferred to the respondent, the New Jersey corporation. It is alleged that the original Missouri corporation was "large and prosperous," having assets of more than $50,000 over and above its liabilities. It is said that these assets were transferred to another Missouri corporation and by the latter conveyed to the respondent. The petition seeks the appointment of a receiver to take charge of such assets and administer the same. Thus it is sought to divest the respondent of title to assets which, according to the allegations of the petition, are presumptively of the value of $50,000 or more. The petition prayed that all three corporations be finally wound up, but the only defendant now remaining, this respondent, is a foreign corporation. However, it appears that the monetary value of the right which would be lost by respondent in the event of the appointment of a receiver, whereby respondent would be divested of all of its property in this jurisdiction, is in excess of the pecuniary limit of our jurisdiction. See State ex rel. Union Electric Light & Power Co. v. Reynolds et al., 256 Mo. 710, 165 S. W. 801, and authorities collated and discussed.

[2] It is true that our jurisdiction to hear and determine the appeal is not challenged, but it is our duty, sua sponte, to determine, in the first instance, the question of our own jurisdiction, that we may not assume to dispose of an appeal in a case wherein we are without jurisdiction and our acts therein coram non judice and void. And as was said by Rombauer, P. J., in Gartside v. Gartside, 42 Mo. App. 513, quoted in State ex rel. v. Reynolds, supra:

Appeal from St. Louis Circuit Court; Eugene McQuillin, Judge.

"Not to be officially published.'

Action by Ella M. Pickel against Frederick J. Pickel. From a judgment awarding plaintiff expenses and suit money, defendant appeals. Affirmed.

Fauntleroy, Cullen & Hay, of St. Louis, for appellant. Randolph Laughlin, of St. Louis, for respondent.

REYNOLDS, P. J. From a judgment awarding plaintiff $85.80 for expenses and $400 "as additional suit money," a total of $485.80, defendant has appealed.

The expenses and the "suit money" are said to have accrued and fallen due in the course of a long and varied litigation between plaintiff and defendant in named cases, and plaintiff on the one side and defendant and his father on the other, in two of the cases. The present proceeding is in the case of plaintiff Ella M. Pickel versus defendant Frederick J. Pickel (see 243 Mo. 641, 147 S. W. 1059), and is for additional services in that and three other cases, namely, Ella M. Pickel v. William Pickel and Frederick J. Pickel, 251 Mo. 197, 158 S. W. 8, Ella Pickel v. William Pickel and Frederick J. Pickel, 259 Mo. 202, 168 S. W. 609, and Ella M. Pickel v. Frederick J. Pickel, 176 Mo.