Grant v. Mclaughlin

• Decision Date: 31 July 1923
• Docket Number: Case Number: 14114
• Citation: 217 P. 873,92 Okla. 51,1923 OK 577
• Parties: GRANT et al. v. McLAUGHLIN.
• Court: Oklahoma Supreme Court

1923 OK 577

217 P. 873

92 Okla. 51

GRANT et al. v. McLAUGHLIN.

Case Number: 14114

Supreme Court of Oklahoma

Decided: July 31, 1923

Syllabus

¶0 1.Brokers--Commission--Contract.

Where a contract provides that a broker shall receive ten per cent. commission on payments as they are made by the purchaser, and he did receive his commission out of the payments as they were made, but the purchaser made default before final payment was made and foreclosure proceedings were brought to enforce their lien for the balance due and a decree of foreclosure was entered and the property sold, but the money received from the foreclosure sale was ordered by the court applied on a judgment against the plaintiffs in foreclosure, and it was so credited, held, that the broker was entitled to his commission out of the money so credited.

2.Same--Construction of Contract.

Where a broker's contract to obtain a purchaser for property is in writing and is clear and unambiguous, it will be enforced according to terms of the contract, and the court will not go outside the contract to find some way to avoid payment of the broker's commission which the court thinks he is clearly entitled to under the contract.

Commissioners' Opinion, Division No. 1.

Error from District Court, Ottawa County; S. C. Fullerton, Judge.

Action by J. M. McLaughlin against V. V. Grant, Sherman Walker, James K. Moore, and J. W. Keys, a copartnership under the firm name of M. & M. Mining Company. Judgment for plaintiff, and defendants bring error. Affirmed.

Frank Nesbitt, for plaintiffs in error, citing, on proposition that court erred in entering judgment on the pleading. Noland v. Owens 13 Okla. 408, 74 P. 954; St. L. & S. F. Ry. Co v. Kerns,. 41 Okla. 167, 136 P. 169; Cobble v. Farmers' Nat. Bank, 53 Okla. 814, 158 P. 364; Franklin v. Ward, 70 Okla. , 174 P. 244; Henryetta Spelter Co. v. Guernsey, 82 Okla. 71, 198 P. 495; and on the proposition that McLaughlin is not entitled to commission on $ 22,268.75, which was credited on plaintiff's judgment in the foreclosure proceedings, he cites National Drill & Mfg. Co. v. Davis, 29 Okla. 625, 120 P. 976; Clark and Sykes on Agency, section 361, page 816; 31 Cyc., page 1509; McPhail v. Buell (Cal.) 25 P. 266; Elliott on Contracts, vol. 3, paragraph 1026; Roach v. McDonald (Ala.) 65 South. 823; 6 Words & Phrases, page 5249; Manton v. Cabot, 4 Hun (N. Y.) 73, 6 Thomp. & C., 203; Murray v. Rickard, 103 Va. 132, 48 S.E. 871.

L. A. Wetzel, for defendant in error, citing McPhail v. Buell (Cal.) 25 P. 266; Manton v. Cabot, 3 Hun (N. Y.) 73, 6 Thomp. & Co., 203; Murray v. Rickard, 103 Va. 132, 48 S.E. 871; Roach v. McDonald (Ala.) 65 South. 825; Crane v. Eddy, 191 Ill. 645, 61 N.E. 431, 85 Am. St. Rep. 284; Frank v. Bounevie (Colo.) 77 P. 363; Glade v. Ford, 131 Mo. App. 164, 111 S.W. 136; Colvin v. Post Mortgage & Land Co., 225 N. Y. 510, 122 N.E. 454; Alford et al. v. Cook et al., 174 Mass. 120, 54 N.E. 499; Edmund Hugill et al. v. E. F. Weekley et al., 64 W. Va. 210, 61 S.E. 360, 15 L.R.A. (N.S.) 1262; Webber et al. v. Holmes et al., 174 Mass. 410, 54 N.E. 872; Cheatham v. Yarbrough et al. (Tenn.) 15 S.W. 1076; Edmund Hugill et al. v. E. T. Weekley et al., supra; Pinkerton v. Hudson (Ark.) 113 S.W. 35.

MAXEY, C.

¶1 We will refer to the parties as they appeared in the court below. J. M. McLaughlin brought suit against the defendants for $ 2,268.75, balance due on commission claimed by him for making a sale of certain mining property belonging to the defendants. On the 19th day of June, 1919. J. W. Keyes, representing the defendants, addressed the following memorandum to the plaintiff, McLaughlin:

"Mr. McLaughlin:

6-19-19.

"In reference to the option we talked of we have decided to take $ 150,000 with terms; commission $ 15,000; $ 5,000 cash with your people to have the right to drill not to exceed six weeks at the end of six weeks you are to pay $ 25,000 balance $ 10,000 per month.

"Signed

"J. W. Keyes"

--which was McLaughlin's authority for representing the defendants in making the sale of their mining property. On the 16th of July, 1919, McLaughlin consummated a sale of the mining property to the Niangua Mining& Royalty Company for the sum of $ 150,000; $ 5,000 cash on that date; $ 25,000 on the 30th day of August, and $ 10,000 on the 30th day of each month thereafter until said $ 150,000 was paid. After this sale was made and terms agreed on, the defendants executed to the plaintiff the following contract:

"Whereas, the M. & M. Mining Company, composed of J. W. Keys, James K. Moore. Sherman Walker, and V. V. Grant, is the owner of property known as the Hare Mine in Ottawa county, Oklahoma, and

"Whereas the owners of said mining property listed the same for sale with J. M. McLaughlin of Miami, Oklahoma, at and for the price of $ 150,000 and agreed to pay said McLaughlin as commission for sale of mine 10% of the amount mine sold for: and

"Whereas the said McLaughlin on July 16, 1919, sold said mine to the Niangua Mining & Royalty Company at and for the sum of $ 150,000 due and payable as follows: $ 5,000 in cash, $ 25,000 on or before August 30th, and $ 10,000 on the 30th day of each month thereafter until said $ 150.000 is paid.

"Now therefore this evidence that the M. & M. Mining Company, composed of J. W. Keys and others above mentioned, hereby agree to pay to said J. M. McLaughlin 10% out of each of the payments made by the Niangua Mining & Royalty Company on the purchase price of said mine as above set forth as a commission for his services in selling said mine. The payments to be made to said McLaughlin on the date that the Niangua Mining & Royalty Company makes said payments to the M. & M. Mining Company.

"Witness our hands this the 17th day of July, 1919.

"V. V. Grant,

"Sherman Walker by V. V. G.

"Jas. K. Moore,

"J. W. Keys."

¶2 This suit requires an interpretation of this contract. The evidence shows that the purchaser, Niangua Mining & Royalty Company, made the payments on said contract until they had paid $ 118,000 of the purchase price. The Niangua Mining & Royalty Company then defaulted in the payment of the other installments, and a suit was brought to foreclose the lien of defendants on the property. It appears that the M. & M. Mining Company had bought the property from the Hare Mining & Milling Company and was indebted to them on the purchase price in the sum of $ 32,966.23; and Niangua Mining & Royal??? Company was indebted to the defendants in the sum of $ 34,500. The lien of the Hare Mining & Milling Company was decreed to be a first lien on the property. The property was sold for $ 30,000 and the court adjusted the equities among the parties and $ 22,268.75 of the money due from the Niangua Mining & Royalty Company to the defendants applied on the judgment of the Hare Mining & Milling Company against the defendants.

¶3 It is contended by the plaintiff that he is entitled to ten per cent. of the $ 22,268.75 which went as a credit on the judgment against the defendants in favor of the Hare Mining & Milling Company.

¶4 It is contended by the defendants that plaintiff is not entitled to ten per cent. on the amount credited on the Hare Mining & Milling Company's judgment, and they contend that under the contract the plaintiff was to receive ten per cent. of the cash payments of the Niangua Mining & Royalty Company, and that this credit cannot be construed as a cash payment. So it will be seen that the case turns on a construction of the contract herein set out. Counsel for plaintiffs in error has assigned two errors:

(1) The court erred in overruling the defendants' demurrer to the plaintiff's petition, to which ruling the defendants excepted.

(2) The court erred in sustaining the plaintiff's motion for judgment on the pleadings, to which ruling the defendants duly excepted.

¶5 We will take these up together, as they both turn on a construction of this contract. The first point raised in brief of plaintiffs in error is that the court erred in entering judgment on the pleadings because there was an issue of fact raised by the pleadings, which would require the introduction of testimony to dispose of. As said in plaintiff's brief, this court has frequently held that a motion for judgment on the pleadings is in the nature of a demurrer, and plaintiff, by filing such motion, admits all of the allegations of the defendants' answer, etc. Now, the question is, Do the third and fourth paragraphs of the defendants' answer make an issue of fact? These paragraphs are as follows:

"Defendants for themselves and on behalf of the M. & M. Mining Company specifically deny that they or any of their agents or representatives ever agreed in open court or any other place that whatever sums were

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