Giltner v. McCombs Producing & Refining Co.

• Decision Date: 22 February 1921
• Citation: 190 Ky. 601,228 S.W. 8
• Parties: GILTNER v. MCCOMBS PRODUCING & REFINING CO.
• Court: Kentucky Court of Appeals

228 S.W. 8

190 Ky. 601

GILTNER v. MCCOMBS PRODUCING & REFINING CO.

Court of Appeals of Kentucky.

February 22, 1921

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.

Action by W. H. Giltner against the McCombs Producing & Refining Company. Judgment for defendant, and plaintiff appeals. Reversed.

Brown Logan & Myatt, J. Blakey Helm, and Clayton B. Blakey, all of Louisville, for appellant.

Grubbs & Grubbs and Stites & Stites, all of Louisville, for appellee.

SAMPSON J.

Appellant Giltner, claiming to be the broker or agent of the McCombs Producing & Refining Company for the sale of a certain number of shares of its capital stock, and having found a purchaser at the price and on the terms proposed by the company, brings this action to recover of said company his commissions or compensation for the services rendered, although the company he charges, violated its agreement and failed and refused to issue the stock to the purchaser, who was ready, able, and willing to buy and pay for same. After showing the corporate capacity of the company to sue and be sued, and the changing of its name, the petition avers, in substance, that the defendant company, in the fall of 1918, promised and agreed to pay plaintiff 8,900 shares of its capital stock for his services in selling J. W. McCullouch 44,500 shares of its capital stock; that he sold to McCullouch said number of shares of stock, and McCullouch was ready, able, and willing to take and pay for same in accordance with the terms and conditions agreed upon between Giltner and the company, but said company refused to issue said stock to McCullouch, although it had agreed to do so; that McCullouch offered to pay to the company the full price which the company asked and proposed to take, according to the company's terms, but the company refused to accept payment or issue the stock to McCullouch; that, having fully performed his part of the contract, he demanded of the company 8,900 shares of its capital stock in payment for his services according to the agreement between them, but the company failed or refused to issue or deliver to him said stock, or any part thereof, or to pay him for his services. It is further alleged that the stock of the company, which was of the par value of $1 per share, was at the time of the sale worth $2.50 per share in the market, or a total of $22,250 for the 8,900 shares which was due him for his services. To this petition a general demurrer was sustained by the trial court, and, the plaintiffs declining to further plead, the action was dismissed, and Giltner appeals to this court.

In sustaining the demurrer to the petition the trial court said:

"The rules of pleading require that the contract sued on shall be substantially set out and the breach thereof assigned in the words of the contract or in words which are coextensive with the import and effect of it. See Moxley's Adm'rs v. Moxley, 2 Metc. 309; Averback v. Hall, 14 Bush, 505; Miles v. Miller, 12 Bush, 134. The petition not conforming to these

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