¶1dissenting.
¶2I respectfully dissent. In my opinion it is questionable that the record supports the determination that there was a mutual understanding that Ketcherside (plaintiff) was to conduct an auction for McLane (defendant) and that defendant was to compensate plaintiff for so doing. See Commercial Lithographing Co. v. Family Media, Inc., 695 S.W.2d 936, 939 (Mo.App. 1985). Regardless, I do not think the record supports the finding that plaintiff substantially performed the task he contends had been agreed upon. Substantial performance is required in order to be entitled to compensation by reason of a unilateral contract. See Cook v. Caldwell Banker, 967 S.W.2d 654, 657 (Mo.App. 1998).
¶3In order to have an auction, a date must be established. This was not done. Plaintiff contends this was to occur “once we had the sale bill completed”; that a date “desirable for all parties involved” would be set. On July 13, 2000, a recorded message was left for plaintiff telling him that defendant was going to have another auctioneer sell the property in question. No sale bill, written bid, or other writing memorializing any agreement between the parties had been presented to defendant by that date. This was a mere 18 days before the building containing the property to be sold was to be occupied by a new tenant. Defendant should not have been expected to wait for a longer time for arrangements for her auction to be finalized. If there was a mutual understanding between plaintiff and defendant, plaintiff did too little too late to be considered as having substantially performed the obligation he represents he had agreed to perform. There was not substantial evidence that would support the judgment. I would reverse the judgment.