ON MOTION FOR REHEARING. In motion for rehearing counsel say that this is a personal action between plaintiff and the Commerce Trust Company and governed by the rules applicable to an ordinary action of a broker to recover a commission for sale of real estate. This insistence ignores the fact that the Commerce Trust Company did not take part in the trial; that Jones Company, through attorneys employed *Page 163 by it, took entire charge and control of the defense; that before the sale was made Mr. Shutz and Mr. Ulffers "assured" the Commerce Trust Company that "it would be called upon to pay but one commission;" that the answer, which was prepared or adopted by Jones Company, alleges that the commission sued for was due and that the named defendant was willing to pay it. It may truly be said that the only issue tendered in the answer was whether the commission sued for should be paid to plaintiff or to Jones Company.
The record discloses that plaintiff was entitled to recover the sum admitted to be due provided Jones Company were without right therein, and by the same token the latter was entitled to the commission in event the former had no right in it.
Counsel say the holding in the main opinion that "a final judgment in this action adverse to plaintiff will, in legal effect, judicially determine that Jones Company was entitled to the commission," is in conflict with the following authorities: State ex rel. v. Johnson, 123 Mo. 43; Handlan v. Wycoff and McMahon, 293 Mo. 682.
The cases cited hold that a person not made a party of record, who participates in a law suit or assists one of the litigants is not concluded by the judgment rendered in the action.
It may be that a person not made a party of record who participates in a law suit or assists one of the litigants is not thereby concluded by the judgment rendered therein.
But in the instant case Jones Company did not merely participate in the trial or assist the Commerce Trust Company. Jones Company assumed entire control of the defense and asserted that the "one commission" was its property. "The general rule seems to be that a person not made a party of record to the suit is nevertheless bound by any judgment rendered therein, if he has a direct interest in the subject-matter of the suit and has the right and opportunity to make defense or control the proceeding." [Owen v. Gilchrist, 304 Mo. 330, 356.]
The conduct of Jones Company in respect to the litigation speaks for itself. Evidently it acted upon the belief that upon the rendition of judgment against plaintiff it would be entitled to receive the "one commission."
The answer pleads that the Commerce Trust Company has no interest in the result of the suit. Plaintiff and Jones Company are the only real parties in interest. Hence the rule governing an ordinary action of a broker to recover a commission is not applicable to the facts in this case. The motion for rehearing is overruled.