H. Axelrod v. Pierron
| Decision Date | 27 June 1927 |
| Citation | 297 S.W. 151,222 Mo.App. 201 |
| Parties | H. AXELROD, RESPONDENT, v. J. P. PIERRON AND LEE AGEE, APPELLANTS. [*] |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Jackson County.--Hon. Samuel A Dew, Judge.
AFFIRMED.
Judgment affirmed.
Goodwin Creason, Edwin L. O'Neil and Ross B. Gilluly for respondent.
Harris & Koontz for appellant Pierron.
Miller Winger & Reeder and David L. Sheffrey for appellant Agee.
Trimble, P. J., absent.
This is an action for specific performance of a written contract. There are two appeals from the judgment, numbered as above indicated, but as the cases were tried as one in the court below and submitted here under a joint abstract of the record and bill of exceptions, they will be considered and determined together.
The facts of record are that in the early part of the year 1919, defendant J. P. Pierron and one A. W. Ault were the owners of certain oil and gas leases in Dickinson county, Kansas, and elsewhere; that defendant Lee Agee was a member of the Agee-Block Realty Company and the Agee-Block Oil Company, with offices at 302 Commerce Building, Kansas City, Mo. Plaintiff lived in Bartlesville, Okla., and was engaged in buying and selling oil and gas well casings. It appears that one Martin Blumenfeld of many years' acquaintance with defendant Agee, made his headquarters with the Agee-Block Realty Company in Kansas City. Pierron and Ault desired to develop their oil and gas leases above referred to and entered into negotiations with plaintiff to procure from him casing to be used in the development of a well on one of their leases. A written contract was entered into which was prepared in the Agee-Block offices, in which Pierron and Ault were named as first parties and plaintiff as second party. The contract was signed by Pierron and Ault in said offices, and in a day or two thereafter, below the names of Pierron and Ault and below the space left for plaintiff's signature, defendant Agee, in his office, and one H. E. Batterman, signed the following alleged guarantee, immediately below the signature of the contracting parties:
It appears that defendants sent Blumenfeld with the contracts signed in triplicate as above indicated, to Bartlesville, Okla., to procure the signature of plaintiff who there signed them; that after the signature of plaintiff had been procured to the contract in triplicate, Blumenfeld took all the copies away with him and later mailed to plaintiff a purported transcribed copy thereof. In a deposition, Blumenfeld identified the transcribed copy of the contract sent plaintiff and which was attached to the petition filed herein, as a copy of the original contract. It appears that all of the said triplicate copies were lost, or could not be found, and none was introduced in evidence at the trial. The contract need not be set out here, but only so much thereof as may be necessary for the consideration of this appeal.
The contract provides, and the petition alleges, that defendants agreed, in the event of finding a producing well, that plaintiff should be paid for the casing at a price named in the contract, to-wit, $ 3.23 per linear foot for twelve inch casing, and $ 2.09 per foot for ten inch casing; the payment to be made, however, from the oil and gas produced from the well. After providing for the contingency of finding a producing well through the use of the casing, the contract provided:
And the contract further provides:
"It is further agreed and made a part of this contract that the parties of the first part shall hold harmless and reimburse the second party for attorneys' fees, costs or other expenses which they might be put to for reason of any litigation that might be commenced for any cause, whereby that property which is loaned to the first parties is involved, or any suit which they might be a party to."
The agreement was that plaintiff, as a consideration for the furnishing of the casing in question, was to receive one-eighth interest in the first well drilled and equipped with said casing to the top of the sand at the expense of Pierron and Ault; and an individual one-eighth interest in the oil and gas leases containing 160 acres upon which the well is to be located; the well to be drilled to a depth of 2500 feet unless oil or gas be found at a lesser depth, and should the well be drilled deeper than 2500 feet, the same shall be at the expense of Pierron and Ault. The owners of the leases were also to assign to plaintiff a lease on an additional 160 acres, other than the direct offsets to the lease on which the well is to be drilled; the offsets being reserved by the lease owners.
It appears that plaintiff, in the performance of his obligations under the contract, shipped to defendants 500 feet, twelve inch and 1500 feet ten inch casing, loaded upon cars at shipping points. It is not disputed that the casing so loaded and shipped was received by defendants and placed upon the acreage where the well was to be drilled. The contract for the drilling of the well was let to the Bankers Oil Company; but the well was never drilled and the casing was left on the site for a long period of time. In preparation for drilling the well the Bankers Oil Company employed E. C. Houser and C. J. Mowry, doing business under the firm name of Houser & Mowry, to do some work relating thereto, at a total expense of $ 431. In order to collect this amount, Houser & Mowry brought suit in which they attached all the equipment on the site, including the casing in question, secured judgment and the said casing with the other equipment was sold to satisfy said judgment. In the case at bar, on objection of plaintiff, the trial court refused to allow the record in the attachment suit to be introduced in evidence, and this ruling is the basis of a charge of error on this appeal. After the drilling of the well was abandoned, it is in evidence that plaintiff, on numerous occasions, came to Kansas City and demanded of Pierron the return of the casing or pay for the same, under the terms of the contract. No payment was ever made to plaintiff and none of the casing was ever returned to him.
The petition was filed in October, 1922, and pleads the contract forming the basis of this suit; alleges that, under the contract, plaintiff was entitled to recover $ 4750, as the value of the casing, an attorney's fee of $ 500 and $ 100 expenses. Defendant Pierron, by his separate amended answer, admits signing the contract described in the petition and attached thereto; that plaintiff shipped the casing in question, and that the same was placed on said leased land; that Pierron and Ault conveyed a one-eighth interest in said well and quarter section of land and that plaintiff thereby became a joint owner in the lease; that the said casing, after delivery to plaintiff, was held in joint possession of plaintiff and Pierron and Ault; that, although plaintiff had agreed to lend the said casing for use in said oil well, the same was never so used; but that it remained upon said premises from about June, 1919, until July, 1922; that plaintiff knew said drilling had been abandoned but that he permitted said casing to remain on the premises with no attempt to remove it and without requesting defendant to deliver same to the nearest railroad station, but requested defendant to leave said casing on the premises and to try and sell it for plaintiff; that without defendant's knowledge or consent, the said casing was taken and sold in an attachment suit of Houser & Mowry against the Bankers Oil Company.
Plaintiff's reply to the said amended answer admits Pierron and Ault conveyed to him the one-eighth interest as alleged in the answer but denies that plaintiff thereby took any partnership or interest in the drilling of said well; admits the casing was shipped to Dickinson county, Kansas, consigned to himself, but states that he sent the bill of lading to defendants, and that defendants took charge of said casing; and that the same was placed upon the land upon which the well was to be drilled.
In a separate amended answer, defendant Agee first makes general denial of the allegations in the petition, and specifically denies a promise to answer for the debts or default of others, and avers if there were any such promise it was not in writing; that if the alleged contract between plaintiff and defendants Pierron and Ault were executed, said Pierron and Ault conveyed an interest therein and plaintiff thereby became a joint holder with defendants Pierron and Ault in said casing. That, pursuant to the terms of the alleged written contract between defendants Pierron and Ault, plaintiff shipped said casing and that the same was held jointly by said Pierron and Ault; that plaintiff permitted said casing to remain on said premises from July, 1919, to July, 1922, and that plaintiff requested defendant Pierron to leave said casing on the leased premises. The answer then pleads the taking and sale of said casing in the attachment suit above referred to.
The reply to the separate answer of defendant Agee is, in general, the same as the reply to the answer of defendants Pierron and Ault, and denies that pl...
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...in this opinion, the court then more fully identified the particular property through extrinsic evidence. See also Axelrod v. Pierron, 222 Mo.App. 201, 297 S.W. 151 (1927) (in analogizing to real property case, court held guaranty not void for indefiniteness under statute of frauds, and ext......
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