Matlack v. Paregoy

• Decision Date: 30 January 1915
• Docket Number: No. 1367.,1367.
• Citation: 173 S.W. 8
• Parties: MATLACK v. PAREGOY et al.
• Court: Missouri Court of Appeals

173 S.W. 8

MATLACK v. PAREGOY et al.

No. 1367.

Springfield Court of Appeals. Missouri.

January 30, 1915.

Error to Circuit Court, Jasper County; David E. Blair, Judge.

Action by Ellwood V. Matlack against E. C. Paregoy and others. Judgment for plaintiff, and defendants bring error. Affirmed.

Fred Kelsey, of Joplin, and H. W. Currey and George V. Farris, both of Webb City, for plaintiffs in error. Thos. Hackney, of Kansas City, for defendant in error.

FARRINGTON, J.

The defendant in error, Ellwood V. Matlack, was plaintiff in the trial court, and the plaintiffs in error were the defendants. In this opinion we will refer to Matlack as the plaintiff and Paregoy and others as the defendants.

A petition was filed by the plaintiff against Elizabeth F. Anderson, administratrix of the estate of E. L. Anderson, deceased, Elizabeth F. Anderson individually, Corrie Cole, Homer Seals, H. P. Sewell, E. C. Paregoy, J. B. McCullough, and Charles W. Edwards, as defendants, seeking to establish plaintiff's title to a mining lease and effect the collection of certain royalties accruing from the mining of said land. The petition alleged and the evidence sustains the finding of the court that the Anderson Mining Company, composed of Elizabeth F. Anderson, administratrix of the estate of E. L. Anderson, Elizabeth F. Anderson, and Corrie Cole, had a first lease on the lands mentioned in the evidence; a lease having been made to the Anderson Mining Company on a tract known as the Norton land. The Anderson Mining Company on June 4, 1909, executed and delivered to plaintiff a mining lease on said land for a term ending January 14, 1918, at 15 per cent. royalty under which the plaintiff was let into possession. On May 11, 1911, plaintiff executed and delivered to Paregoy and his associates a sublease on these lands for a term ending January 14, 1918, at 25 per cent. royalty. The lease from plaintiff to Paregoy and associates required continuous mining, and contained a provision against assignment or subleasing without plaintiff's consent. In September, 1912, Paregoy and his associates assigned this sublease to Burke & Kerzey; the consent of plaintiff thereto, however, was not obtained until November 2, 1912, at which time plaintiff executed an instrument in writing consenting to the assignment to Burke & Kerzey and an assignment by them to Homer Seals, who associated with himself in the sublease H. P. Sewell. The condition of the consent and assignment to Seals and Sewell was that plaintiff be paid 25 per cent. royalty, and that all ore checks should be delivered to the Conqueror Trust Company or the Anderson Mining Company and the proceeds divided, 25 per cent. to the plaintiff and 75 per cent. to Seals and Sewell. Seals and Sewell mined the land and turned ore checks over to the Anderson Mining Company for a large quantity of ore, amounting in round numbers to about $40,000. The Anderson Mining Company appropriated 15 per cent. of the amount, which it had a right to as its royalty from the Matlack sublease, turned 75 per cent. of the amount over to Seals and Sewell, and retained 10 per cent., which it refused to pay either Matlack or Paregoy and his associates, McCullough and Edwards. The petition of plaintiff sets up that he is entitled to all of this 10 per cent., and shows that defendants Paregoy, McCullough, and Edwards are claiming 5 per cent. of it.

Seals and Sewell filed an answer admitting the leases and assignments set forth in plaintiff's petition. The Anderson Mining Company, with defendants, other than Seals and Sewell, joined in an answer alleging that on September 24, 1912, the plaintiff, by an instrument in writing, reduced the royalty named in the lease (25 per cent.) to Paregoy and associates to 20 per cent. This answer also avers that relying on the reduction of royalty by W. J. Robinson, the agent of plaintiff, from 25 to 20 per cent., in their lease from plaintiff, they subleased the land to Burke & Kerzey, who afterward assigned their rights to the present operators, Seals and Sewell, and further pleaded a ratification by plaintiff of Robinson's act in reducing the royalty.

The plaintiff's reply consisted of a general denial of allegations of the several answers, and denied, under oath, the execution of the instrument purporting to reduce the royalty from 25 to 20 per cent.

During the hearing of the cause the Anderson Mining Company paid to the plaintiff one-half of the royalty collected up to that time. The decree established plaintiff's right to the other 5 per cent. held by the Anderson Mining Company, and neither the Anderson Mining Company, by the individuals composing it, nor Seals and Sewell appeal from the judgment of the trial court. This narrows the question involved here to the right of plaintiff to claim the 5 per cent. in the hands of the Anderson Mining Company as against Paregoy, McCullough, and Edwards; and the issue presented here is whether or not a written instrument dated September 24, 1912, executed by W. J. Robinson as agent of the plaintiff, reducing the royalty in plaintiff's lease from 25 to 20 per cent., is binding on the plaintiff.

The only writing that Robinson had from the plaintiff, vesting any authority whatever in him, is contained in a letter dated February 16, 1910, written while plaintiff was en route from St. Louis to New York. The letter is as follows (omitting the letter head of the railroad company on whose stationery it was written):

                                          "Feb. 16, 1910
                

"Mr. W. J. Robinson, Miners' Bank Bldg., Joplin, Mo. — Dear Mr. Robinson: I was so short of time leaving St. Louis that I did not have the opportunity of sending you the letter I promised, but you may consider this your authority for looking after the Lee Hall mine in Joplin. I am anxious to know what was the result of the inquiry for leasing the...