"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 &
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.
"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...
