Stevens v. Brimmer

• Decision Date: 07 December 1926
• Docket Number: 1268
• Citation: 35 Wyo. 452,251 P. 1
• Parties: STEVENS ET AL. v. BRIMMER ET AL. [*]
• Court: Wyoming Supreme Court

251 P. 1

35 Wyo. 452

STEVENS ET AL. v. BRIMMER ET AL. ^[*]

No. 1268

Supreme Court of Wyoming

December 7, 1926

ERROR to District Court, Laramie County; W. A. RINER, Judge.

Action by William E. Stevens and another against George E. Brimmer and others. A demurrer to the complaint was sustained, and plaintiffs bring error.

Affirmed.

Ray E Lee, for plaintiffs in error.

The petition stated a cause of action for recovery of broker's commission; Frost v. Houx, 15 Wyo. 353; Evans v. Co., 21 Wyo. 183; Meechem on Agency, 2nd Ed. Sec. 2435. The lease was a chattel real; Brown v Beecher, 120 Pa. St. 590; Grasiosa Co. v. County (Calif.) 99 P. 483; Tupeker v. Deaner, (Okla.) 148 P. 853; Thompson on Real Property, Vol. 1, Sec. 62; Barnes v. Bee, 138 F. 476; Barnsdall v. Owen, 215 F. 519; Oil Co. v. Belleview Co., 119 P. 260. The lease should be considered as personal estate; Tiffany on Real Property, 2d Ed. p. 8; Priddy v. Thompson, 204 F. 955, and cases cited. Plaintiffs were not selling real estate within the meaning of the real estate dealers' license law, Chapter 31, Laws 1921, and plaintiffs were entitled to maintain their action without reference to the question of a license; Springsteen v. Lewis, 259 F. 518; Meechem on Agency, 2d Ed. p. 2091; Howard v. Lebby, 30 A. L. R. 830. The above authorities hold that a single transaction in selling real estate does not constitute one a real estate agent.

Clarence A. Brimmer, for defendants in error.

The petition fails to show the employment of plaintiffs as agents; Chapter 31, Laws 1921, requires real estate agents to be licensed, but the petition does not show that plaintiffs were licensed real estate agents; allegations, as to the legal effect of the alleged contract, are superfluous; 4 Enc. Pl. & Prac. 918. No contract was alleged or proven; Page on Contracts, Vol. 1, Sec. 78; 4 R. C. L. 43, p. 298, 299; 9 C. J. 516; Johnson v. Whalen, (Okla.) 74 P. 503; Geier v. Howells, (Colo.) 107 P. 255. The Wyoming cases cited by plaintiff in error are based on different facts from the case at bar; an unlicensed broker cannot recover commission; 9 C. J. 565; Meyer v. Wiest, (Pa.) 95 A. 715; Kennedy v. Lonabaugh, 19 Wyo. 352; Williston on Contracts, §§ 1763-1764. Real estate agents are persons employed to sell, exchange, lease or offer to lease any real estate or improvements thereon as a vocation; Laws 1921, Chapter 31. An oil or gas lease is an interest in real estate; Barnsdall v. Gas Co., 74 A. 207; Hicks v. Gas Co., (Pa.) 57 A. 55; Chandler v. Hart, (Calif.) 119 P. 516; Allen v. Co., (Calif.) 168 P. 884; Kolachney v. Galbreath, 26 Okla. 772; Rich v. Doneghey, (Okla.) 177 P. 87; Shaffer v. Marks, 241 F. 139; Aggers v. Shaffer, 256 F. 648; Guffey v. Smith, 237 U.S. 101. An oil and gas lease is within the statute of frauds; Montana etc. Oil Co. v. Gibson, 19 Wyo. 1; and in the case of Jones v. Losekamp, 19 Wyo. 83, the decision indicates that the Supreme Court believes that such instruments vest an interest in land; the petition failed to show an employment, or that plaintiffs were licensed dealers, and the judgment of the lower court should be affirmed.

POTTER, Chief Justice. BLUME and KIMBALL, JJ., concur.

OPINION

POTTER, Chief Justice.

The judgment complained of in this case was rendered in favor of the defendants below for costs and dismissed the action, following an order sustaining a demurrer to each of the two causes of action alleged in the petition and the failure of the plaintiffs thereafter to amend as allowed by such order. The action was brought for the recovery of a commission alleged to be due to the plaintiffs for their services as brokers for the sale of certain oil and gas leases granted by the United States to the defendants upon lands described in the petition and alleged to be situated in what is known as the Maverick Springs Oil District in this state.

Error is assigned only upon the order sustaining the demurrer, and the ultimate question, therefore, is whether or not the court erred in that ruling. At the time of the filing and hearing of the demurrer, each cause of action of the petition had been amended pursuant to an order requiring it to be made more definite and certain by inserting therein, in addition to the other allegations thereof, certain correspondence between the parties relied upon to show a contract of employment, together with an express averment that each cause of action was based upon such correspondence. So that the several averments of the petition as to each cause of action are to be construed in connection with the letters inserted therein and attached thereto, comprising said correspondence.

The difference, if any, between the averments of the two causes of action, in substantial effect, is little; and yet there is perhaps enough to require that the averments of each be separately stated. It was originally averred in the first cause of action that in April, 1921, the defendants were the owners of oil and gas leases granted by the United States covering certain described lands situated in the above mentioned oil district; that the plaintiff Bowman had been informed during that month that the Union Oil Company of California desired to purchase said leases, and that thereupon he entered into correspondence with defendant Brimmer with reference thereto, notifying him that said plaintiff would accept a reasonable commission for his services in case he and his associates, the other defendants, sold the leases or any portion thereof to the said Union Oil Company. That thereafter said Brimmer "priced 1140 acres of said land to said plaintiff Bowman at $ 1000 per acre for the leases thereof, and said plaintiff Bowman thereupon transmitted said information to the other plaintiff, Stevens, who was associated with plaintiff Bowman in transacting said business, and said plaintiff Stevens thereupon submitted said offer to said Union Oil Company." That thereafter said Oil Company "entered into negotiations with said defendants, who were acting by and through said defendant Brimmer and on or about June 20, 1921, said defendants sold and assigned the leases of all of said lands to said Oil Company and that thereafter * * * the assignment and transfer of the leases * * * was accepted and approved by the Secretary of the Interior." That plaintiffs are informed and believe and therefore allege that defendants received as consideration for said sale and transfer the sum of $ 1000 per acre for all of said leases, or a total sum of $ 2,400,000. "That said defendants agreed to pay said plaintiffs a reasonable compensation for their services in securing a purchaser for said oil and gas leases;" and "that a reasonable compensation for said services is ten percent * * * or a total sum of $ 240,000." That said sum became due and payable to plaintiffs upon the consummation of said sale and the approval of the Secretary of the Interior, and that the same is due and owing to plaintiffs with legal interest, and that defendants and each of them have failed, neglected and refused to pay said sum or any part thereof. It is also alleged in that cause of action that the defendant Brimmer acted for and on behalf of himself and each of the other defendants, that said leases are all in his name, and that the assignments thereof were made by him.

The original averments of the second cause of action may be briefly stated as follows: That during the month of July, 1921, the defendants were the owners of government oil and gas leases on certain described lands (the same as described in the first cause of action); that said leases were sold in the name of the defendant Brimmer, who held the same for the use of himself and the other defendants; that during said month of April, the plaintiffs, at the special instance and request of the defendant Brimmer, then acting for himself and the other defendants, procured a purchaser for said leases; that in so doing the plaintiffs rendered services to the defendants of the reasonable value of $ 240,000; that said defendants promised and agreed to pay the reasonable value of said services, but that they have wholly failed, neglected and refused to pay the same or any part thereof; that the sale of said leases was consummated on July 9, 1921, by the approval thereof by the Department of the Interior of the United States; and that thereupon the defendants became and ever since have been indebted to the plaintiffs in said sum with legal interest from and after said date.

The letters comprising the correspondence aforesaid and which became a part of the petition in connection with the averment that each cause of action was based thereon, seem to be of such importance that they will be quoted as now found set forth as part of the pleading:

"EXHIBIT A.

Lander, Wyoming,

Apr. 5th, 1921.

Mr. George E. Brimmer,

Rawlins, Wyoming.

Dear Sir: --

I have recently had inquiries from some very substantial Oil Cos. for an oil property of some considerable size located in this State. I have talked to Mr. Barber about the Maverick Spgs. Property, which you are interested in, and while he has furnished me some information, he is frank to admit that he hasn't the details and advises me to write to you for information as you have the handling and sale of this property in charge.

I do not care to have you go into detail as to title, production, etc, as I have run that down pretty close from here, but I would like to have you state what I could expect in the way of a commission or compensation should I be able to find you a buyer that would take this property over.

You might indicate what I should ask for this property, however, I do not regard that part of it so important at this time if I can convince the buyer that we have what he is looking...