Allen v. Ramsey

• Decision Date: 05 February 1935
• Docket Number: 22728.
• Citation: 41 P.2d 658,170 Okla. 430,97 A.L.R. 1259,1935 OK 98
• Parties: ALLEN v. RAMSEY et al.
• Court: Oklahoma Supreme Court

41 P.2d 658

170 Okla. 430, 97 A.L.R. 1259, 1935 OK 98

ALLEN v. RAMSEY et al.

No. 22728.

Supreme Court of Oklahoma

February 5, 1935

Syllabus by the Court.

1. A petition which alleges that a real estate broker entered into a contract with the owner to sell certain property of the owner; that he fully performed his part of the contract by submitting the name of the purchaser to his principal, the owner of the property; and that thereafter strangers to the contract conspired with the owner to induce him, and did induce him, to disregard his contract and make the sale through others; that he, the plaintiff, was the procuring cause of said sale, and by reason thereof had earned the agreed commission, is not sufficient to state a cause of action against others, strangers to the contract, for the recovery of damages from them, based upon the commission he was entitled to receive under said contract.

2. Accurately speaking, there is no such thing as a civil action for conspiracy. The action is for damages caused by acts pursuant to a conspiracy, but none for the conspiracy alone and unless something is actually done by one or more of the conspirators pursuant to the scheme, which act results in damage, no civil action lies against any one. The gist of the action is the damage and not the conspiracy.

3. A debt due from one person to another cannot be satisfied by the recovery of damages from another person unconnected with and a stranger to, the contract whereby the debt or obligation is created.

4. Before a summons can rightfully issue from one county to another, the person served with summons in the county in which the action is brought must have a real and substantial interest in the subject of the action adverse to the plaintiff and against whom some substantial relief may be obtained; and the action must be rightly brought in the county in which it is brought as against the persons served with summons in such county.

5. Where a timely motion is filed by a nonresident defendant challenging the jurisdiction of the court and he subsequently answers for the purpose of defending the suit filed against him, and asks for no affirmative relief in his answer, his defending the suit is merely under protest and does not prejudice his protest of the lack of jurisdiction of the court.

Appeal from District Court, Tulsa County; Thurman S. Hurst, Judge.

Action by J. M. Allen against W. R. Ramsey, R. M. Franks, Ronald S Mason, C. H. Wright, Hargrove Hudson, George Deck, and Ralph Johnson. Demurrers to evidence and motion of defendants for a directed verdict sustained, and the cause of action dismissed by the court, plaintiff appeals.

Judgment affirmed.

Eakes & Robinson, of Tulsa, for plaintiff in error.

Allen & Jarman, of Oklahoma City, for defendants in error W. R Ramsey and R. M. Franks.

Allen K. Swann, J. B. Durfee, and Paul E. Taliferro, all of Tulsa, and Charles W. Mason, of Oklahoma City, for defendants in error Ronald S. Mason, C. H. Wright, and Ralph Johnson.

Walter L. Kimmel, of Tulsa, for defendants in error Hargrove Hudson and George Deck.

PER CURIAM.

This action was brought by the plaintiff, J. M. Allen, in the district court of Tulsa county. The action is one sounding in tort and is brought against the defendants, W. R. Ramsey, R M. Franks, Ronald S. Mason, C. H. Wright, Hargrove Hudson, George Deck, and Ralph Johnson. All of the defendants are residents of Tulsa county except Ramsey and Franks, who are residents of Oklahoma county.

Plaintiff's petition alleges in substance that on or about the 26th day of January, 1928, the defendant W. R. Ramsey contracted with, and employed the plaintiff to sell for him certain oil properties for an approximate consideration of $1,000,000, payable one-half in cash, and one-half from oil runs, and that the plaintiff, acting under the contract, proceeded diligently in offering said properties and attempting to sell the same to various prospective purchasers, among them the Sunray Oil Corporation; that the said Sunray Oil Corporation declined the properties at the time it was offered, but subsequently, acting directly and through the instrumentality and interference of the other defendants Franks, Mason, Wright, Hudson, Deck, and Johnson, responded to overtures and opened negotiations with the plaintiff's principal, W. R. Ramsey, and conspiring together, and with the said W. R. Ramsey, with the intent to defraud the plaintiff and deprive him of the fruits of his efforts in attempting to sell said properties, induced the said W. R. Ramsey to breach and abrogate his contract with the plaintiff and to sell the said properties to the said Sunray Oil Company for virtually the same consideration at which plaintiff had offered the properties and to pay the compensation for effecting such sale to the other defendants, thereby injuring and damaging the plaintiff in the sum of $60,000.

The petition further alleges that the plaintiff was the procuring cause of said sale and, therefore, entitled to the commissions. The petition further sets out the efforts employed by the plaintiff in attempting to bring about a sale of the property to various and sundry persons, firms, and corporations, including his efforts to the Sunray Company, and closes with a prayer for damages, which he claims were brought about and sustained by the tortious acts of the defendants, jointly and severally undertaken and consummated.

To plaintiff's petition, the defendants Mason, Wright, Hudson, Deck, and Johnson filed a special appearance and motion to quash, and the defendants Ramsey and Franks likewise filed a special appearance and objection to the jurisdiction of the court on the ground that the action was a fictitious attempt to bring the defendants Ramsey and Franks within the jurisdiction of the courts of Tulsa county by joining the other defendants, all of whom were residents of Tulsa county, and who had no interest whatever in the cause of action. These motions were overruled, and the defendants then filed their separate demurrers to the petition, the defendants Ramsey and Franks reserving the same jurisdictional grounds. And after the demurrers were overruled, separate answers were filed for the defendants, the defendants Ramsey and Franks still insisting on their jurisdictional grounds, and subsequently, and shortly before the case was called for trial, Ramsey and Franks filed their amended answer, which in substance was a general and specific denial of all of the matters complained of in plaintiff's petition. The amended answer does not specifically raise the jurisdictional question theretofore raised by them in the various pleadings theretofore filed.

The issues as thus joined came on for trial before the court in Tulsa county and a jury, and, after the jury had been impaneled and before they were sworn, the defendants Ramsey and Franks objected to the impaneling of the jury on the grounds that the district court of Tulsa county had no jurisdiction, which objection was likewise overruled, and subsequently and at the beginning of the taking of testimony, each of the defendants separately, jointly, and individually objected to the introduction of any evidence on the grounds that the petition and the opening statement of counsel for plaintiff failed to state a cause of action against the defendants, and, in addition, the defendants Ramsey and Franks objected to the introduction of evidence for the further reason that the court was without jurisdiction to hear and determine the issues so far as these defendants were concerned.

The evidence disclosed that C. H. Wright was president of the Sunray Oil Corporation, and that Ronald S. Mason was a former secretary of the Sunray Oil Corporation and still maintained an office adjoining the offices of the corporation at the time involving this controversy; that Hargrove Hudson and George Deck were lease brokers; that all of said defendants mentioned above were residents of Tulsa county; that W. R. Ramsey and R. M. Franks, who was an agent of Ramsey, were residents of Oklahoma county.

The plaintiff, Allen, testified in substance that for about fifteen years he had been engaged in the oil and brokerage business in Tulsa county, buying and selling oil leases for others on a commission, and engaged in the real estate business for himself and sometimes as a broker for others that he had been acquainted with the defendant Ramsey for about six years and had, previous to this transaction, sold leases for him; that about the 18th day of January, 1928, he wrote Mr. Ramsey inquiring if he would let out any of his acreage in the Allen pool for a drilling contract, and that about the 20th day of January he received a reply from Ramsey stating that he would be interested in such a proposition with a responsible party; that subsequently he 'phoned Mr. Ramsey at Oklahoma City, and that on or about the 27th day of January, 1928, the defendant Ramsey called him from New York telling him that he might submit a proposition to a Mr. Crosby on 416 acres owned by Ramsey north of the river in the Allen district, and authorized him to sell a half interest to Crosby in the property for $200,000, advising him further to get in touch with his agent, R. M. Franks, who would supply him with a map of the acreage, Franks being the land man for Ramsey; that pursuant to the telephone conversation, he did call Franks, and Franks submitted to him a map of 416 acres, which he used in submitting the proposition to Mr. Crosby; that subsequently, and on February 2, 1928, he had a conference with Mr. Ramsey at Ramsey's office in Oklahoma City, in which Ramsey advised him that since his return from New York, the first well that he was drilling on this acreage looked so much better that he was...