Lowther v. Scheirich

• Citation: 241 S.W. 834,195 Ky. 177
• Parties: LOWTHER v. SCHEIRICH ET AL.
• Decision Date: 06 June 1922
• Court: Court of Appeals of Kentucky

241 S.W. 834

195 Ky. 177

LOWTHER v. SCHEIRICH ET AL.

Court of Appeals of Kentucky.

June 6, 1922

Appeal from Circuit Court, Franklin County.

Action by C. F. Lowther against H. J. Scheirich and others. From an order sustaining a demurrer to the petition, plaintiff appeals. Affirmed.

E. C O'Rear, of Frankfort, W. G. Dearing, of Louisville, and Hamilton & Polsgrove, of Frankfort, for appellant.

Henry M. Johnson, H. J. Scheirich, and C. C. Hieatt, all of Louisville, Hogan Yancey and S. S. Yantis, both of Lexington and E. Selby Wiggins, of Richmond, for appellees.

SAMPSON J.

Appellant Lowther, commenced this action against Scheirich, Yantis Stilz, Yancey, Hieatt, Brown, Johnson, and Wiggins to recover $20,000 alleged to be due him as commission on a sale of certain oil and gas leases situated in Jackson and Estill counties, Ky. belonging to Duquesne Oil Company, a Pennsylvania corporation, with offices in Pittsburgh. A general demurrer was sustained to his petition as amended, and, upon his declining to further plead, his cause was dismissed. Complaining of this, he appeals.

In his petition he set up and relied upon two writings, one of date November 7, 1918, reading as follows:

"Agreement.

This agreement by and between D. C. Wiggin & C. F. Lowther said D. C. Wiggins agrees to give C. F. Lowther any amount he saves by the purchase of property of the Duquane Oil Co., at the price $100,000, said D. C. Wiggins is not obligated unless he makes sale of said property. Mr. C. F. Lowther is to get option on property balance of this week, to-day being Thursday, November 7, 1918. Said D. C. Wiggins agrees to pay $100,000 providing he can sell same. Mr. Lowther is to receive any amount he can save on the purchase of the property under $100,000.

D. C. Wiggins."

And the second one, of date November 14, 1918, reading:

"11--14--18.

Mr. W. V. Thraves, City--Dear Sir: We will accept the property of the Duquesne Oil Co. at $80,000 payable $40,000.00 cash and the balance in 6 & 12 months with lien or leases mortgage executed upon the property to secure the deferred payments we will also agree to carry you in the new Co. to be organized at 200,000 shares without par value for 5,000 shares of stock with privilege given to you to pay for your stock at the rate of 50¢ per share at any time. Respectfully, H. J. Scheirich, for C. C. Hieatt and Others."

He avers that pursuant to the said first writing he obtained an option on the said oil property from the said Duquesne Oil Company at the price of $60,000, but, Wiggins and associates being unable to close the deal in the two days' time limited in the option, several additional days were given in which to...