Joseph Projects Diversified, Inc. v. Knox-Arizona Corp.

935 S.W.2d 644, 1996 Mo. App. LEXIS 1666, 1996 WL 570894
CourtMissouri Court of Appeals
DecidedOctober 8, 1996
DocketNos. 66616, 66840
StatusPublished

This text of 935 S.W.2d 644 (Joseph Projects Diversified, Inc. v. Knox-Arizona Corp.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Joseph Projects Diversified, Inc. v. Knox-Arizona Corp., 935 S.W.2d 644, 1996 Mo. App. LEXIS 1666, 1996 WL 570894 (Mo. Ct. App. 1996).

Opinion

PER CURIAM.

Joseph Projects Diversified, Inc. (Joseph Projects) brought this cause of action against Knox-Arizona Corporation (Knox-Arizona) to recover a brokerage commission for $75,-000 and 2,000,000 shares of stock. The trial court entered judgment in favor of Joseph Projects and Knox-Arizona appeals.1 Joseph Projects cross-appeals the trial court’s denial of interest and a proportionate increase in the shares of stock. We reverse on the direct appeal and the cross-appeal is rendered moot.

Knox-Arizona is an Arizona business involved in mining and processing ores and minerals in the western United States. Joseph Projects is a Missouri corporation which procures loans and' arranges financing.

In 1976, Knox-Arizona decided to expand its business and needed $750,000 for that purpose. William Knox, president of Knox-Arizona, approached banks in the St. Louis area seeking funding. After numerous loan denials, Knox decided to seek alternative sources of funds.

In April 1977, Knox met Joseph Lumetta (Lumetta), a loan broker and principal of Joseph Projects. Lumetta told Knox he thought Manning Savings and Loan Association of Chicago (Manning) might lend Knox-Arizona the $750,000.

On May 10, 1977, Joseph Projects and Knox-Arizona entered into a brokerage agreement. Joseph Projects agreed to “[arrange] a method of financing” for $750,000 on “rate, terms and conditions acceptable to [Knox-Arizona].” In return, Knox-Arizona agreed to pay Joseph Projects a fee of ten percent of the amount of the loan and 2,000,-000 shares of Knox-Arizona’s corporate stock. The agreement provided the interest for the loan would not exceed ten and one-fourth percent per annum and the loan would be secured by a first mortgage on property and all equipment owned by Knox-Arizona for an appraised value of $675,000. The agreement also provided Joseph Projects was the sole and exclusive agent of Knox-Arizona for a thirty day period.

Lumetta’s testimony at trial indicated that Joseph Projects obtained a signed loan commitment (Maiming document) from Manning and that all Knox-Arizona needed to do to obtain that financing was to present the loan commitment to the Bank of St. Louis.2 Over objection, Lumetta testified the Bank of St. Louis previously told Knox-Arizona it would provide interim financing immediately based [646]*646upon a loan commitment. Lumetta admitted, however, he never communicated with the Bank of St. Louis directly about interim financing. According to Lumetta, Knox made statements that he was unhappy about paying the commission and stock to Joseph Projects. Lumetta testified he tried unsuccessfully on numerous occasions to talk to Knox about the transaction and that when he finally met with Knox in August 1977, nothing was accomplished.

Knox testified Joseph Projects never produced an acceptable loan commitment and, in fact, the first time he ever saw the Manning document was well into the litigation and years after the expiration of the brokerage agreement. Knox further testified that even if he had seen the Manning document while the brokerage agreement was in effect, he would have refused it because it was unacceptable for Knox-Arizona’s purposes. Knox testified the Manning document was unacceptable because it did not provide for an immediate loan of cash which Knox-Arizona desperately needed. Instead, it required Knox-Arizona to first obtain a loan from a local lender and then, twenty-nine months later, Manning would purchase a ninety percent participation in the local bank funding. Knox testified the Manning document did not provide for funding at all if a local lender could not be found and that he had previously been denied a loan by the Bank of St. Louis. Additionally, the Manning document provided that the interest rate on the loan would be three percent over the prime rate as set by the First National Bank of Chicago, as of September 25, 1979, or at the interest rate of ten percent per annum, whichever was higher. Knox testified this was unacceptable to Knox-Arizona.

Knox also testified that while the brokerage agreement was in effect, he attempted to secure a $50,000 loan for Knox-Arizona. Knox testified this loan was already in process prior to the brokerage agreement and it was only for day to day operations.

Joseph Projects brought this cause of action against Knox-Arizona seeking the brokerage commission and shares of stock. Joseph Projects also asked for interest and a proportionate increase in the shares of stock. Joseph Projects also sought relief against Knox individually for his alleged personal guarantee of the brokerage agreement. The trial court found in favor of Joseph Projects, ordered Knox-Arizona to issue 2,000,000 shares of stock to Joseph Projects, and entered a judgment for $75,000 in favor of Joseph Projects and joint and several liability against Knox-Arizona and Knox individually.

Regarding the interest of the $75,000 brokerage commission and the enhancement of the 2,000,000 shares of stock, the trial court found Joseph Projects was not entitled to this relief because of “[Joseph Projects’] laches in bringing this suit to trial.” This appeal and cross-appeal followed. The appeal against Knox individually has been dismissed.

Review of this court-tried case is governed by Rule 73.01 and the principles set forth in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). It requires that the decision of the trial court must be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. at 32.

Knox-Arizona contends in its first point that the brokerage agreement was unenforceable against it because Joseph Projects breached the agreement by failing to procure a loan commitment. Knox-Arizona argues the Manning document was not a loan commitment because it contained a condition precedent which was never satisfied. It argues specifically that the Manning document provided that Manning would lend Knox-Arizona $750,000 if, and only if, a local savings and loan association, bank, or insurance company agreed to originate the loan and retain ten percent of the loan. Then, twenty-nine months later, Manning would purchase a ninety percent interest in the loan.3 Be[647]*647cause Manning would only lend the money if a local interim lender could be found, Knox-Arizona contends it was Joseph Projects’ obligation under the brokerage agreement and as Knox-Arizona’s exclusive agent to take the necessary steps to secure a local loan. Joseph Projects did not take these steps and, consequently, the condition precedent was not met. As a result, the Manning document did not provide a method of financing and Knox-Arizona was not required to accept it as such or pay Joseph Projects the commission.

A “condition precedent” is one that must be performed before the agreement becomes obligatory, and which calls for the happening of some event or the performance of some act (after the terms of the contract have been agreed on) before some act dependent thereon must be performed. Black’s Law Dictionary, Fifth Edition; O’Neil Lumber Co. v. Allied Builders Corp., 663 S.W.2d 326, 329-330 (Mo.App.1983).

Joseph Projects concedes that obtaining a local interim loan was a condition precedent to receiving a loan from Manning.

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Related

Murphy v. Carron
536 S.W.2d 30 (Supreme Court of Missouri, 1976)
O'Neil Lumber Co. v. Allied Builders Corp.
663 S.W.2d 326 (Missouri Court of Appeals, 1983)

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Bluebook (online)
935 S.W.2d 644, 1996 Mo. App. LEXIS 1666, 1996 WL 570894, Counsel Stack Legal Research, https://law.counselstack.com/opinion/joseph-projects-diversified-inc-v-knox-arizona-corp-moctapp-1996.