Johnson v. Fetter

• Decision Date: 01 June 1928
• Citation: 7 S.W.2d 241,224 Ky. 788
• Parties: JOHNSON v. FETTER et al.
• Court: Kentucky Court of Appeals

7 S.W.2d 241

224 Ky. 788

JOHNSON v. FETTER et al.

Court of Appeals of Kentucky

June 1, 1928

Appeal from Circuit Court, Boyd County.

Action by M. D. L. Greer against B. F. Johnson, Alice Mayo Fetter as executrix of the estate of John C. C. Mayo and others, in which B. F. Johnson filed answer and cross-petition and John E. Buckingham was substituted as administrator de bonis non of the estate. From a judgment dismissing the answer and counterclaim, defendant first named appeals. Affirmed.

Moore &amp Childers, of Pikeville, for appellant.

Hager &amp Stewart and S. S. Willis, all of Ashland, for appellees.

THOMAS J.

The facts herein referred to and upon which this opinion is based include those that are undisputed, and those found by the trial court to exist, and which finding is sufficiently supported by the testimony in the cause to authorize us to accept them as true under the rules of appellate practice prevailing on appeals in equity cases.

John C. C. Mayo was a dreamer, and saw the great possibilities and tremendous outcome of the coal industry in Eastern Kentucky. Following his vision, he conceived the idea of inaugurating development movements, whereby such mineral could be obtained and put upon the market and at the same time realize for its promoter remunerative, but possibly remote, profits.

Prior to December 3, 1900, through his personal efforts and those of others whom he enlisted for the purpose, he had acquired extensive mineral titles in various sections of that part of the state, but not to the full extent of his desires. On that day he entered into a written contract with one M. D. L. Greer and the appellant B. F. Johnson, by the terms of which Mayo was to furnish money to Greer and Johnson with which they were to procure, "principally in Floyd, Pike, Letcher, and Knott counties," conveyances of coal-mining rights from the owners, to the Ohio & Big Sandy Land Association, a corporation previously organized by Mayo, and in which he was a large stockholder. It was further provided therein that:

"The said property in fee or mineral rights so acquired is to be resold and conveyed by the said Ohio & Big Sandy Land Association, and all profits realized upon such sale, over and above the payments made on account of the first purchase money and the expense incurred by the parties hereto, are to be divided in the proportion following: To John C. C. Mayo, one-half thereof; to B. F. Johnson, one-fourth thereof; and to M. D. L. Greer, one-fourth thereof."

Another stipulation provided that Greer and Johnson were not to be liable for any losses, and no one was to be compensated for personal services. Mayo, by the greatest efforts, advanced small sums of money from time to time, and within less than one year from the date of the contract quite a large amount of mineral titles were obtained by Greer and Johnson, and the purpose of the venture was practically, if not entirely, accomplished by that time.

Some time prior to July 27, 1901, Mayo succeeded in forming a corporation known as Northern Coal & Coke Company, and on that date he entered into a tentative agreement to transfer the mineral titles he held, including those obtained by Greer and Johnson, to the latter corporation, in consideration of one-fifth of its capital stock, and that tentative agreement was carried into full execution on August 17, 1903, at which time conveyances were made to the Northern Coal & Coke Company, and the 1901 agreement was completely performed. On the day prior thereto (August 16, 1903), the Ohio & Big Sandy Land Association, by Mayo, its president, and appellant, B. F. Johnson, signed and executed another written contract, reading:

"Memorandum of agreement, made March 16, 1903, between Ohio & Big Sandy Land Association, a West Virginia corporation, party of the first part, and B. F. Johnson, party of the second part.

Whereas, the said B. F. Johnson on December 3, 1900, entered into an agreement with Jno. C. C. Mayo, the latter acting on behalf of the said Ohio & Big Sandy Land Association for the purchase and sale of coal and mineral lands in Floyd, Pike, Letcher, and Knott counties, Kentucky, by the terms of which the said Johnson was to receive a certain portion of the profits realized from the sale of the properties so purchased under said agreement; and whereas various properties have been purchased under said agreement and have been sold to and acquired by Northern Coal & Coke Company; and whereas settlement has not been made between the said B. F. Johnson and said Jno. C. C. Mayo on account of said purchases:

It is now agreed that the said B. F. Johnson shall receive a commission of forty (40¢) per actual acreage as expressed in deed upon all the land that was purchased by said Ohio & Big Sandy Land Association through the agency of said B. F. Johnson and by said Ohio & Big Sandy Land Association sold to Northern Coal & Coke Company, for which lands the said Northern Coal & Coke Company has obtained deeds or may hereafter obtain deeds; and it is further agreed that the said B. F. Johnson and John C. C. Mayo, president of Ohio & Big Sandy Land Association, shall agree as to what tracts were purchased through the agency of said B. F. Johnson, upon which the said Johnson shall be entitled to said commission of forty cents per acre.

This agreement shall be in lieu of the terms of the said agreement of December 3, 1900, in so far as the lands that have been sold to Northern Coal & Coke Company by said Ohio & Big Sandy Land Association are concerned.

The said party of the first part has this day paid to said B. F. Johnson on account of his said commissions the sum of twenty-five hundred dollars, receipt whereof is hereby acknowledged by said party of the second part.

This agreement applies only to the lands purchased by said Ohio & Big Sandy Land Association through the agency of said B. F. Johnson that have been sold to said Northern Coal & Coke Company upon which said latter company has obtained deeds, or may obtain deeds."

On the same day they entered into the same character of contract with reference to titles that Johnson had obtained for the Midland Coal & Iron Company and the Mountain Coal & Iron Company.

On August 17, 1903, the date of the conveyance of the mineral interest to the Northern Coal & Coke Company, it agreed therein to assume the obligations to Johnson contained in and growing out of the contract of date December 3, 1900, as modified by the one of March 16, 1903, and it later, and on August 18, 1905, made a settlement with him, and he accepted it as his paymaster in lieu of Mayo or any of the companies for whom he had procured conveyances. That settlement was also in writing, and was in the form of a stated account, wherein Johnson was credited with the amount of $20,000, the agreed compensation and commission that he was to receive under the modified contracts of March 16 and 17, 1903, supra, and, in stating the items and matters for which the credit to Johnson was given, it was said:

"In full for services and disbursements to and for the following named companies and J. C. C. Mayo to date, and in full of commissions on lands and minerals purchased for the following named companies and J. C. C. Mayo, viz.: Ohio & Big Sandy Land Association, Midland Coal & Iron Company, Northern Coal & Coke Company, Mountain Coal & Iron Company, Duncan Coal & Iron Company, Empire Coal & Land Company, Northern Coal, Coke & Iron Company, and Jno. C. C. Mayo, and in settlement and full satisfaction of agreement dated March 16, 1903, between the said Johnson, J. C. C. Mayo, and the Ohio & Big Sandy Land Association relative to commissions in full of all claims to date against said Mayo and said companies or any and all of them, $20,000."

He was then charged with $14,765.89, theretofore paid him by Mayo, or by the companies for which he took conveyances, and the Northern Coal & Coke Company on that date paid him $2,834.10, leaving a balance due him of $2,500, which when paid would complete the $20,000, the total amount of his agreed compensation under the settlement contracts, supra. At the foot of that account Johnson signed this receipt,

"Received Aug. 18th, 1905, of Northern Coal and Coke Company, twenty-eight hundred thirty-four and 11/100 dollars, in full settlement of the above account, except balance of $2,500 as shown above."

On April 27, 1911, a written receipt was executed by Johnson to the Northern Coal & Coke Company, wherein he released and discharged it and a number of other named companies and John C. C. Mayo "from any and all that I have or may have against them, or any of them, from any and all demands of any kind, whatsoever, that I may have against them, or any of them, hereby canceling and discharging the same." He excluded therefrom his claims against some enumerated companies arising, not from the acquisition of mineral titles, but from timber contracts, mostly railroad ties; and, either just prior there to or closely following that time, Johnson wrote a letter to the Northern Coal & Coke Company calling its attention to a balance due him under its assumption of the settlement contracts, supra, amounting to in the neighborhood of $1,100, and which amount was promptly paid him.

Mayo died testate and a resident of Johnson county May 10, 1914 and in June, 1915, Greer instituted this action against his widow as executrix of his will for a settlement of the matters due him under what he termed the "partnership" that was formed by the December 3, 1900, contract, and in his petition he alleged that upon a proper settlement Mayo was indebted to him for his one-fourth of the profits as per the terms of that contract in a large sum of money, amounting to, in the neighborhood of, $750,000. ...