Boqua v. Marshall

• Decision Date: 07 December 1908
• Citation: 114 S.W. 714,88 Ark. 373
• Parties: BOQUA v. MARSHALL
• Court: Arkansas Supreme Court

114 S.W. 714

88 Ark. 373

BOQUA v. MARSHALL

Supreme Court of Arkansas

December 7, 1908

Appeal from Sebastian Chancery Court; J. Virgil Bourland Chancellor; reversed.

Robert L. Rogers, for appellants.

1. Under the evidence, it was error to give judgment in favor of Marshall for any amount; but if his contention is correct then he would be entitled only to one-half of the commission of $ 10,000.00 (the amount named in the contract) after the firm expenses in negotiating and finally concluding the sale were deducted.

2. But the offer to sell made by Latham to the firm was for a limited time and to certain prospective purchasers, Mordoff and Hammond, and that offer was revoked when Latham sold an option to Boqua, Jr., and R. S. Willie, on October 27. Latham's offer to the firm was not an option, because there was no consideration to support it; hence it was only a continuing offer, revocable at any time, and was revoked by the sale of the option on October 27th. 21 Am. & Eng. Enc. of L. 929 and cases cited; 2 Chancery D. 463.

Youmans & Youmans, for appellee.

1. As to Boqua, Sr., the decree of the lower court is conclusive he not having appealed.

The prayer for appeal indorsed on the transcript amounts to an appeal as to A. E. Boqua, Jr., only, and is not sufficient to bring in Willie as an appellant here.

2. The findings of law and fact by the court will stand, if not opposed to a clear preponderance of the evidence. 68 Ark 314; 75 Ark. 52; 68 Ark. 134. Marshall's right to a share in the commission was not dependent on a sale to Mordoff and Hammond. On the contrary, the right of the firm to sell the property was a partnership asset, and it was immaterial to whom the. sale was made. 101 F. 322; 22 Am. & Eng. Enc. of L., 114, 115, authorities cited; 53 Ark. 152. There is no contention that dissolution of the firm occurred before November 1, 1905. The contract and option procured by Boqua, Jr., and Willie were both obtained before that date, and the clear preponderance is that the option was obtained for the purpose of sale. It was, therefore, a partnership asset at the time of dissolution, and appellee had an interest in whatever was made out of it. 101 F. 322.

Robert L. Rogers, for appellant in reply.

1. The contention that only A. E. Boqua, Jr., has appealed is idle. All of the defendants, as is conclusively shown by the prayer for appeal, have asked for an appeal through the agency of A. E. Boqua, Jr. , as they had the right to do.

2. Trials in chancery are de novo, and the findings of the chancellor persuasive only; and where they are against the clear preponderance of testimony, his decree will be reversed. 55 Ark. 112; 50 Ark. 185; 75 Ark. 72; 31 Ark. 85; 41 Ark. 292; 42 Ark. 521; 83 Ark. 340.

OPINION

MCCULLOCH, J.

This is an action to recover an interest in broker's commissions on the sale of the capital stock of the Pan Telephone Company of Fort Smith, Arkansas, appellee (the plaintiff below) claiming to have been a member of a firm of brokers who, it is alleged, made the sale and earned the commission. During the summer of 1905 appellee Marshall and appellant A. E. Boqua, Jr., formed a co-partnership under the firm name of Marshall-Boqua Realty Company, and on October 12, 1905, Mr. Latham, the owner of 597 out of the 600 shares of the telephone stock, entered into a contract with the firm whereby he agreed, if they brought about a sale of the stock for $ 110,000, to pay them for their services all over $ 100,000 of the purchase price. Appellee, acting for his firm, was then in negotiation with C. W. Mordoff, of Toledo, Ohio, and his associates, for sale of the stock. A sale to Mordoff and associates was neve consummated, but the stock was subsequently sold to A. E. Boqua, Sr., father of A. E. Boqua, Jr., and certain associates under a new agreement, and a gross commission of $ 15,000 was paid by Latham. Appellee claimed half of this commission ($ 7,500), and it was paid into the American National Bank of Fort Smith to await the result of the threatened litigation over it.

This action was then instituted in the chancery court by appellee Marshall against A. E. Boqua, Jr., R. S. Willie, who also claimed an interest in the commission, and the American National Bank. He alleged in his complaint that, under the original agreement concerning the sale of the stock, Willie agreed to assist in making the sale by procuring a loan of money for the purchaser for a commission to be paid by the latter, and that his commission should be shared with the Marshall-Boqua Realty Company; that Boqua, Jr., representing the firm, made a new deal with Latham for a commission of $ 15,000, and then made the sale, and that Boqua, Jr., and Willie conspired together to defraud him of his share of the commission. Boqua, Jr., and Willie filed separate answers, admitting the formation of the alleged partnership and the execution of the original contract with Latham for sale of the telephone stock, but alleged that Boqua, Sr., assisted in finding purchasers, and was, by agreement with the firm, to have half of the commission; that Willie was also to assist and receive one-fourth of the commission; that the firm failed to make a sale of the property, and after the dissolution of the firm Boqua, Jr., and Willie procured from Latham an option for the purchase of the stock, and made a sale to Boqua, Sr., and associates, earning thereby a gross profit of $ 15,000 which was greatly reduced by necessary expenditures in making the sale. They denied that appellee assisted in negotiating the sale, and was entitled to any commission, but prayed that, if that issue should be decided against them, the expenditures in making the sale should be deducted from the commission or profit before deciding it.

A. E. Boqua, Sr., appeared, and by leave of court filed his interplea, containing substantially the same denials and allegations set forth in the answer of Boqua, Jr., and Willie, and asserting his claim to the fund in controversy. The chancellor, at the final hearing of the case, found that appellee was entitled to the fund in controversy, dismissed the interplea of Boqua, Sr., and rendered a decree in appellee's favor.

The defendants, Boqua, Jr., and Willie, prayed and obtained an appeal from the clerk of this court. Boqua, Sr., contends that he also joined in the prayer for appeal, and that he is now before the court as an appellant. Appellee contends that Boqua, Sr., did not appeal, and cannot now do so, as the time for the appeal has expired.

The prayer for appeal indorsed on the transcript is as fol-

"The defendants pray an appeal to the Supreme Court from the decree upon this transcript, and their exceptions to said decree.

(Signed)

"A. E. Boqua, Jr., et al., defendants in the court below, by A. E. Boqua, Jr."

A. E. Boqua, Sr., was not a defendant below. He styled himself "interpleader" in the pleadings, and was so designated in the orders of court, including the final decree. The summons issued by the clerk of this court pursuant to the prayer for appeal also omits the name of A. E. Boqua, Sr., and includes only the names of those who were defendants below--A. E. Boqua, Jr., R. S. Willie, and American National Bank. He therefore does not fall within the designation of parties who prayed an appeal.

Willie was a defendant, and the prayer for appeal included him, though he is not mentioned therein by name, and he did not sign the application. Little Rock Traction & El. Co. v. Hicks, 78 Ark. 597, 94 S.W. 711. The application could be made and signed by attorney or agent.

Willie has since filed a disclaimer, and asks that the appeal granted on his behalf be dismissed. This is met by a response from A. E. Boqua, Jr., showing that Willie assigned to W. R. Abbott all his interest in the subject-matter of the litigation, and that Abbott has assigned that interest to him. The assignment to Abbott was made before the commencement of the suit, but the assignment from Abbott to Boqua, Jr., was made during the pendency of the suit and before the appeal was taken. This, then, presents the question whether Willie has the right to dismiss the appeal or to decline to prosecute an appeal from the decree of the chancery court. At common law the assignment of a chose in action conferred upon the assignee the right to enforce remedies in the name of the assignor, and the right to control any action instituted to enforce the chose. The assignor was not permitted to interfere with the action so as to hinder or defeat the rights of the assignee. 4 Cyclopedia of Law, p. 93 and cases cited. This rule is modified by the statute, which provides that any action, with certain named exceptions, must be prosecuted in the name of the real party in interest. Kirby's Digest, § 5999.

Another section of the Code provides that "agreements and contracts in writing for the payment of money or property or for both money and property shall be assignable (Kirby's Digest, § 509); and still another that "where the assignment of a thing in action is not authorized by statute the assignor must be a party, as plaintiff or defendant" (Kirby's Digest, § 600). These statutory provisions leave the common-law rule in force as to the cause of action not assignable under the statute, and as to these the rule still prevails that the assignment gives the assignee the right to control the action in the name of the assignor. Though the assignor may, under the statute, be brought in as a defendant, this provision does not abrogate the common-law right of the assignee to use the name of his assignor in an action to enforce the assigned right, for in law the assignor is deemed to be the owner where the right is not assignable. St. Louis, I. M. & S. Ry. Co. v. Camden Bank, 47 Ark. 541...