Durkee v. Gunn

• Decision Date: 10 May 1889
• Citation: 21 P. 637,41 Kan. 496
• Parties: J. A. DURKEE et al. v. W. C. GUNN
• Court: Kansas Supreme Court

21 P. 637

41 Kan. 496

J. A. DURKEE et al. v. W. C. GUNN

Supreme Court of Kansas

May 10, 1889

Error from Bourbon District Court.

THIS action is the same as Gunn v. Durkee, (ante, p. 144,) but this record contains the entire proceedings of the trial.

The findings of fact explain in substance the cause of action and the drift of the testimony introduced; they are as follows:

"1.On the 1st day of June, 1886, the defendants, under the style of Durkee & Stout, entered into a contract in writing with the plaintiff and E. D. Marr, who were then doing a real-estate and insurance and loan business under the style of Gunn & Marr, of which contract the following is a copy:

"'FORT SCOTT, June 1, 1886.--This agreement witnesseth: That, in consideration of value received, Durkee & Stout have hereby given Gunn & Marr the exclusive sale of the southeast quarter of the southeast quarter of section 31, in township 25, range 25, in the county of Bourbon and state of Kansas, on the following terms: The parties to this contract agree to an appraisement of $ 300 per acre for all of said property, less the railroad right-of-way, being about 37 acres, more or less.

"'Gunn & Marr agree to plat said land as Durkee &amp Stout's addition to the city of Fort Scott, Kansas; to offer said property for sale; to thoroughly advertise and press the sale of said property vigorously at the exclusive expense of Gunn & Marr; and all profits arising over and above $ 300 per acre to be divided equally between the parties to this contract, Durkee & Stout receiving one-half and Gunn & Marr one-half of such profits.All the land lying north of the center of National avenue is to be platted first, Durkee & Stout reserving the right at their option to cancel this contract so far as it relates to the land lying south of the center of National avenue, but Gunn & Marr reserve the right to include the land lying on said south side of National avenue in the conditions of this contract by allowing Durkee & Stout $ 50 per acre more, that is, $ 350 per acre for said south side; it being understood and agreed, however, that said south side shall not be offered for sale until all or nearly all of the north side is sold.The proceeds of all sales, both cash and notes are to be turned over to Durkee & Stout whenever any sales are made, and all papers are to be made in favor of Durkee & Stout, who shall credit such proceeds as part payment and continue to do so until the whole sum due Durkee & Stout on that portion of said tract lying north of the National road is paid, it being understood that there shall be no division of profits until the original price per acre for that portion of said tract lying north of the National road shall have been paid.This contract shall expire on the 1st day of October, 1887.

"'It is understood that the ground now occupied by nursery stock can be sold only by reserving the right of possession until the close of the season for planting trees in the spring of 1887.It is further agreed that in case Gunn & Marr elect to include in the contract that portion of said tract lying south of said National road on the terms and conditions herein provided, that no division of profits on the sale of the same shall be made until said Durkee & Stout shall have received payment in full for said south side.Signed DURKEE & STOUT.

GUNN & MARR.'

"2.Shortly after the making of said contract, Gunn & Marr caused said land to be surveyed and platted at their own expense as Durkee & Stout's addition to the city of Fort Scott, and gave to Durkee & Stout a copy of said plat.

"3.Gunn & Marr caused to be published in two issues of the Fort Scott Daily Monitor an extended editorial notice calling the attention of the public to this addition, and that it was in the market for sale.

"4.Gunn & Marr also caused a small local notice to be published in every issue of the Fort Scott Daily Monitor from the 2d of June to the 8th day of September, 1886, directing the attention of the public to this land.

"5.Gunn & Marr did quite a large real-estate business, and a plat of said ground as Durkee & Stout's addition was hung in their office for public inspection.

"5 1/2.Gunn & Marr never presented a plat of said ground to Durkee & Stout for the execution until February 8, 1887 and Durkee & Stout never executed it.

"6.These editorial and local notices and this plat of the addition hanging in their office, constituted all of the advertising which Gunn & Marr did of this addition.

"7.The partnership of Gunn & Marr was dissolved July 23d 1886, by E. D. Marr retiring, W. C. Gunn buying out the interest of said Marr in the business, including his interest in this contract.

"8.An extended notice of the dissolution of this firm, with the purchase of Marr's interest in the business, and that W. C. Gunn would continue the business, was given in the Fort Scott Daily Monitor of July, 1886, which paper was taken by both defendants.

"9.Immediately after such notice of dissolution the local notice above referred to was signed by W. C. Gunn, instead of Gunn & Marr, and said Durkee & Stout, particularly W. H. Stout, was in the habit of meeting said Gunn in a business way as often as once or twice a month.

"10.Said defendants knew of the dissolution of the firm of Gunn & Marr, and that W. C. Gunn was conducting the business of Gunn & Marr, and was acting instead of Gunn & Marr in doing whatever he did under this contract.

"11.Said Durkee & Stout never objected or made any question as to the right of said W. C. Gunn to act in the place of Gunn & Marr.

"12.In June, 1886, shortly after this contract, Durkee & Stout sold two pieces of the land, and the firm of Gunn & Marr did not sell any of the ground, and W. C. Gunn did not sell any ground until in February, 1887.

"13.By reason of a controversy in the city over bonds voted to the K. N. & D. R. R., and for other reasons, the real-estate market was very dull in Fort Scott during July, August, September, October, November and December, 1886, and in January, 1887.

"14. W. C. Gunn, for the purpose of disposing of this piece of land and other land which he had for sale, and for the purpose of 'booming' the city, expended considerable sums of money in advertising the city during the latter part of 1886, and about January 1, 1887, took a very active part in getting up a syndicate, (for the purpose of buying and selling land and advertising the city,) composed in part of foreign capitalists; and was mainly instrumental in raising the stock for the syndicate, taking $ 10,000 of stock in the same.

"15.Mainly by the formation of said syndicate, real estate in the city of Fort Scott, during the early part of February, 1887, suddenly increased in value -- almost double.

"16.In the early part of February, 1887, said Gunn sold two of these lots at the price fixed upon them by Durkee & Stout, and reported the same to Durkee & Stout, when for the first time they notified said Gunn that he was no longer their agent; that he had abandoned his contract and failed to properly advertise and press the sale of the land.

"17.On February 23, 1887, when this suit was brought, said land taken as a whole would have sold out in lots at the rate of $ 750 per acre.

"18.The...