Kimmell v. Powers

• Decision Date: 05 September 1907
• Citation: 1907 OK 121,19 Okla. 339,91 P. 687
• Parties: CYRUS KIMMELL v. OLIVER POWERS, Executor, et al.
• Court: Oklahoma Supreme Court

1907 OK 121

91 P. 687

19 Okla. 339

CYRUS KIMMELL v. OLIVER POWERS, Executor, et al.

Supreme Court of Oklahoma

Decided: September 5, 1907

Syllabus

¶0 1. PRINCIPAL AND AGENT--Relationship--Case. A contract, whereby the owner of an addition to a town gives to another the management and exclusive sale of the same for a period of ten years, and agrees to pay to such person twenty-five per cent. of the proceeds of sales, after deducting the current expense, and also agrees that, if any part of the addition remains unsold at the end of that time, it shall be appraised and the owner to have three-fourths thereof and the other party one-fourth, constitutes the relation of principal and agent, and does not vest the agent with any interest in the real estate itself.

2. SAME--Termination of Agency--Death of Party. Where the relation of principal and agent exists, the death of either party terminates the agency, except where the agent has a pecuniary interest of his own in the execution of the agency.

3. PLEADING--Petition--Demurrer. Where a petition neither states a cause of action in equity or at law, a demurrer thereto should be sustained.

Error from the District Court of Comanche County; before Frank E. Gillette, Trial Judge.

Affirmed.

Black & Trosper, for plaintiff in error.

Stevens & Myers and Hudson & Keys, for defendants in error.

BURWELL, J.:

¶1 James R. Woods was the owner of a valuable claim adjoining the city of Lawton, which was afterwards platted and known as Woods' Addition to that city. On March 5, 1902, Mr. Woods died, and the legal title to this land became vested in his wife, who was a daughter of the plaintiff. After the death of James R. Woods, the plaintiff, on October 17, 1902, entered into a written contract with his daughter, Alta M. Woods, whereby it was agreed that the plaintiff should have charge of the selling and management of this addition, as well as the management of investments to be made with Mrs. Woods' money. The contract is as follows:

"This contract made and entered into this 17th day of October, 1902, by and between Alta M. Woods, of Lawton, Oklahoma, or Norton, Kansas, party of the first part, and Cyrus Kimmell, of El Reno, party of the second part.

"Witnesseth: That said party of the second part does hereby covenant with the party of the first part, her heirs, executors, and assigns to take charge of all the business interests of the party of the first part in Lawton, Oklahoma, and elsewhere consisting of the sale of lots, blocks, adjusting legal difficulties, railway right of way case, and all matters pertaining to the Woods Addition whatsoever.

"That the party of the second part shall have control of the sale of the Woods Addition in Lawton, Oklahoma, for a period of ten years hereof, and shall receive for such services twenty-five (25) per cent. of the proceeds of such sales after deducting current expenses of the same, such division to be made on or about the first day of January of each year during the term of this contract and before investing the proceeds of the sales and other income for the previous year, provided however, that the party of the second part shall not receive a per cent. of the settlement for the right of way through said addition which may be granted to the Oklahoma City and Western Railway Company and that the party of the second part shall have full control of each investment for a period of ten years from date of each investment but in all matters of investment whenever practical before investing said money, is to counsel with the party of the first part regarding such investment; that he shall seek according to his best judgment safe and conservative investments for all moneys received from the above described real estate and belonging to the party of the first part after deducting all current expenses for the year; that such investment shall be made in the name of Alta M. Woods, party of the first part; that he is to receive all money derived from the sale of the Woods Addition and deposit the same in the banks of El Reno and Lawton, in the name of the party of the first part.

"That the party of the second part shall receive for the management of such investments belonging to the party of the first part thirty-seven and one-half per cent. of the net profits of all such investments after deducting all expenses of said business; that on or about the first day of January of each year during the term of this contract the books of the business for the previous year shall be closed and dividends declared and divided between the parties according to this contract; that if the profits upon said investment belonging to the party of the first part are reinvested that such money reinvested is to be managed on the same terms as the original investment.

"And it is a agreed further that if at the expiration of ten years from this date either party may wish to sever their business relations, and terminate this contract, that all the property of the Woods Addition remaining unsold shall be appraised by three competent, disinterested parties and that such value shall be a fair cash valuation and it shall be divided between the parties hereto, the first party receiving seventy-five per cent., and the second party twenty-five per cent. of all such unsold property either in lots, stock, notes, mortgages or cash as they may agree, provided, however, that should the parties hereto arrive at a valuation of such unsold property without the intervention of outside parties, a settlement may be made and the appraisement waived.

"It is provided that in the event of the death of the party of the first part this contract is to remain and be in full force and effect, with and against the heirs, executors and legal assigns of the first party.

"That in the event of the death of the party of the second part, there shall be due his estate that portion of twenty-five per cent. of the unsold property which shall correspond to

...