Lord v. Jackman
| Decision Date | 07 November 1970 |
| Docket Number | No. 45698,45698 |
| Citation | 476 P.2d 596,206 Kan. 22 |
| Parties | Theodore W. LORD, Sr., Appellant, v. R. R. JACKMAN, partner in and for Jackman & Jackman, and Rees Jackman, Administrator of the Estate of F. C. Jackman, deceased, partner in and for Jackman & Jackman, Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. When there is a challenge to the sufficiency of evidence on an issue of fact by motion for a directed verdict, the court may not weigh conflicting evidence, but is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the motion is leveled.
2. The relationship between a seller and a broker is that of agency; agency exists only by virtue of contract, express or implied; and whether there is a binding contract creating an agency relation must be determined by application of the same rules which pertain to contracts generally.
3. In order for a broker to be entitled to a commission for the sale of stock, he must establish an agency contract showing he was employed to negotiate the sale in connection with which his services were rendered, and his employment must have been by the person from whom the commission is claimed.
4. In an action by a broker to recover a commission for the sale of stock, the record is examined, and it is held the trial court properly sustained a motion for directed verdict on behalf of defendants for the reason there was insufficient evidence to establish the existence of an agency contract between the parties.
David Skeer, of Sheffrey, Ryder & Skeer, Kansas City, Mo., argued the cause, and Robert P. Anderson, of Payne, Jones, Anderson, Martin & Payne, Olathe, was with him on the brief for appellant.
John A. Emerson, of Barber, Emerson & six, Lawrence, argued the cause, and was on the brief for appellees.
This is an action by plaintiff Theodore W. Lord, Sr., to recover a brokerage commission of $18,279.26 for the sale of 800 shares of corporate stock owned by the defendants, R. R. Jackman and F. C. Jackman.
The narrow question before us for consideration is the propriety of the trial court's order sustaining the motion for directed verdict in favor of defendants.
At pretrial conference the district court ordered a trial by jury, pursuant to K.S.A. 60-239(b), on two issues: (1) Was the contract alleged by plaintiff entered into? and (2) If so, was it performed? The case was tried in May 1968 and resulted in mistrial because the jury, although in agreement on the first issue, was unable to agree upon the answer to the second issue. Thereupon, defendlants moved for judgment in accordance with their earlier motion for directed verdict at the close of all the evidence (K.S.A. 60-250(b)). The motion was sustained on the basis there was insufficient evidence to support a finding of the existence of a contract between plaintiff and defendants for payment of a commission as alleged in the petition. Judgment was entered for defendants and plaintiff has appealed.
A brief review of the pleadings will focus the issues submitted to the jury. Plaintiff's petition alleged that on or about April 1, 1963, plaintiff and defendants entered into an agreement whereby plaintiff agreed to attempt to find a purchaser for all the stock of Goffe and Carkener, Inc., part of which was owned by defendants, at a price agreeable to defendants and the other stockholders; and defendants agreed to pay plaintiff three percent of the sale price of such stock upon his producing a purchaser. Plaintiff further alleged that during February 1964 he produced a buyer, ready, willing, and able to purchase the stock at the agreed price. Thereafter, according to the petition, defendants withdrew their offer and refused to pay plaintiff's commission, although defendants and the other stockholders sold their stock in November 1964 for $998,875 to the prospective purchaser obtained by plaintiff. Defendants, in their answer, admitted the sale price of the stock, but denied all other averments of the petition.
Our cases are legion that when there is a challenge to the sufficiency of evidence on an issue of fact by motion for a directed verdict, the court may not weigh conflicting evidence, but is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the motion is leveled; and if the evidence is of such character that reasonable minds may reach different conclusions thereon, the motion for directed verdict must be denied and the issue submitted to the jury. (Pickens v. Maxwell, 203 Kan. 559, 456 P.2d 4; Elliott v. Chicago, Rock Island & Pac. R. Co., 203 Kan. 273, 454 P.2d 124; Springfield Tent & Awning Co. v. Rice, 202 Kan. 234, 447 P.2d 833.)
From the evidence most favorable to plaintiff we piece together these facts.
R. R. Jackman and F. C. Jackman, as partners, owned 800 shares (of a total of 1,305 shares) of stock in Goffe & Carkener, Inc. Plaintiff had known the defendant, R. R. Jackman, for nearly thirty years. As early as 1956, R. R. Jackman told plaintiff that he and his brother, F. C. Jackman, wanted to sell their majority stock interests in the corporation. The minority stockholders objected to any proposed sale of the majority interests only and threatened legal action unless the minority interests were included.
Seven years passed, and in March or April 1963 R. R. Jackman and plaintiff met with Lee Norgren, a business broker in Denever, Colorado, with reference to the sale of all the corporation stock. Although in Denver, Colorado, with reference to the interest in purchasing the stock himself, there was evidence that at this meeting the three of them agreed that in the event plaintiff and Norgren procured a purchaser of the stock, defendants would pay them a fee of six percent of the sale price. As a side agreement, plaintiff and Norgren agreed between themselves to split any fee they received. Jackman suggested the commission be deducted from any purchase price offered so that a (net to seller' price would be quoted to the minority stockholders, thus avoiding any difficulty with those who might object to paying a commission from their share of the purchase price. The sale price of the stock was to be $150,000 over and above the book value as shown in the audited financial statements, with adjustments to market value for assets such as memberships in grain or commodity exchanges and certain securities owned by the corporation.
During the Norgren negotiations, R. R. Jackman informed plaintiff by letter dated June 3, 1963, that the offering price of the stock was $775 per share, and that defendants reserved the right to take the stock off the market at any time.
Norgren soon bowed out of the picture, and through plaintiff's efforts, Rea Tenney, on behalf of himself and his associates, became interested as a potential buyer of the stock. A meeting of plaintiff, Tenney, and the Jackmans was held in August 1963 in Kansas City, where the proposed sale was discussed. According to plaintiff, there was no new discussioin with the Jackmans about any commission being paid to him. R. R. Jackman recalled that at the meeting he advised Tenney there was to be no responsibility on the part of the sellers for a commission or finder's fee, and Tenney agreed to 'take care of' plaintiff. Later, when Tenney was ready to submit a firm offer, plaintiff, at Tenney's request, sent the Jackmans a letter dated January 30, 1964, stating:
'This letter covers my introduction to you of Rea C. Tenney, Houston, Texas with reference to his group's prospective purchase of the common stock of Goffe & Carkener, Inc., Kansas City.
'My compensation in this transaction will come from the Tenney group and therefore you are released from liability for any compensation on this particular introduction.
'This release also applies to all minority stockholders of Goffe & Carkener, Inc.'
In the meantime, during December 1963, while the Tenney negotiations were still in progress, plaintiff received permission from R. R. Jackman to submit the sale proposal to one A. Vincent Blackford. Plaintiff and Blackford discussed the matter on five or six occasions, and Blackford reviewed the corporation's financial statements. On January 9, 1964, (which was prior to plaintiff's letter of January...
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