Vining v. Mo-La Oil Company

• Decision Date: 22 December 1925
• Docket Number: 24715
• Citation: 278 S.W. 747,312 Mo. 30
• Parties: H. B. VINING, Appellant, v. MO-LA OIL COMPANY
• Court: Missouri Supreme Court

278 S.W. 747

312 Mo. 30

H. B. VINING, Appellant, v. MO-LA OIL COMPANY

No. 24715

Supreme Court of Missouri

December 22, 1925

Appeal from Jackson Circuit Court; Hon. James H. Austin Judge.

Reversed and remanded (with directions).

Dickinson & Hillman for appellant.

(1) Plaintiff offered evidence of his contract of agency and that he procured purchasers for the property and introduced them to defendant's officers and that plaintiff continued in his efforts to induce said purchasers to buy both the twenty-acre property and the four hundred-acre property and that defendant accepted such purchasers and entered into a contract of sale of both properties of its own making and that it treated the transaction as a sale and that defendant voluntarily canceled such contract of sale without plaintiff's consent and entered into subsequent contracts of its own making with such purchasers and that defendant received between $ 118,818.79 and $ 123,818.77 on the purchase price and became indebted to the purchasers and repaid $ 13,000. Therefore the peremptory instructions in the nature of demurrers to the evidence were properly refused. Knisely v. Leathe, 256 Mo. 372, 178 S.W. 453; Lombard v. Sills, 170 Mo.App. 555; Morgan v Keller, 194 Mo. 663. (2) There was no error in plaintiff's three instructions. Knisely v Leathe, 256 Mo. 372, 178 S.W. 453; Lombard v. Sills, 170 Mo.App. 555; Morgan v. Keller, 194 Mo. 663; Ross v. Major, 178 Mo.App. 431. (3) Defendant's motion for a new trial should not have been sustained for errors in instructions requested by it because the errors, if any, were invited by defendant. R. S. 1919, secs. 1276, 1513; Cook v. Globe Printing Co., 227 Mo. 471; Vining v. Lippincott, 182 S.W. 758; Bank v. Ins. Co., 283 Mo. 336. (4) Defendant accepted the purchasers procured by plaintiff and the contract of December 11, 1919, was made by it. It was cancelled by the consent of defendant and without plaintiff's consent. It was an enforcible contract, not an option contract. Knisely v. Leathe, 256 Mo. 372; Lombard v. Sills, 170 Mo.App. 555; Morgan v. Keller, 194 Mo. 663.

Henry S. Conrad and Caleb S. Monroe for respondent.

(1) Defendant's instructions in the nature of a demurrer to plaintiff's evidence and in the nature of a demurrer to all the evidence should have been given. (a) The contract of December 11, 1919, and both the contracts dated February 9, 1920, are option contracts, and not contracts of sale, which plaintiff alleges he was employed to procure. Coal Co. v. Halderman, 254 Mo. 596; Glass v. Rowe, 103 Mo. 539; Zeidler v. Walker, 41 Mo.App. 118; Ramsey v. West, 31 Mo.App. 684. (b) A real estate agent, employed to make a sale, is not entitled to his commission for the procuring of a mere option contract. 9 C. J. (Brokers) 603; Zeidler v. Walker, 41 Mo.App. 118; Reiger v. Bigger, 29 Mo.App. 421; Ramsey v. West, 31 Mo.App. 676; Crowe v. Trickey, 204 U.S. 228. (c) The defendant, by entering into the option agreement, did not accept that as performance of plaintiff's undertaking to find a purchaser. Reiger v. Bigger, 29 Mo.App. 427. (2) Plaintiff's instructions are fatally defective in that they fail to require the jury to find that plaintiff was the procuring cause of the transactions upon which he claims a commission. Russell v. Poor, 133 Mo.App. 728; Ramsey v. West, 31 Mo.App. 686; Law v. Paddock, 220 S.W. 969. And this defect is not cured by proper instructions given on behalf of defendant. Russell v. Poor, 133 Mo.App. 728; Law v. Paddock, 220 S.W. 969; Hall v. Coal Co., 260 Mo. 369. (3) Although plaintiff had negotiated with Igou and Kaempff as to the four hundred-acre tract, the fact that the contract was closed with them and others does not give him a right to a commission. Donaldson v. Houck, 213 Mo. 441; Dillard v. Field, 168 Mo.App. 206; Crain v. Miles, 154 Mo.App. 338; Ramsey v. West, 31 Mo.App. 676.

Higbee C. Railey, C., not sitting.

OPINION

HIGBEE

Plaintiff sued defendant for $ 17,500 and interest for commissions on sales of certain oil leases in Louisiana. A verdict for plaintiff for $ 19,832.08 was set aside on motion for new trial, on the ground that the court erred in giving and refusing instructions, and plaintiff appealed.

Plaintiff had an oral contract of agency with the defendant's treasurer, Mr. McClearn, who wrote plaintiff on August 13 1919, confirming the terms of the oral contract, in substance, as follows:

"Mr. H. B. Vining.

"Dear Sir:

"Confirming our verbal conversation regarding commissions to be paid you for selling the following property in Louisiana through Mr. H. Lowerre or any other parties:

"You are to get a commission of $ 10,000 if you sell the Mo-La Oil Company 400 acres [here follows description] in Caddo Parish, provided said property is sold for $ 200,000. I also agree to pay you $ 3,000 commission on the sale of the Mo-La Oil Company half interest in 20 acres [here follows description] Caddo Parish, La., known as the Uncle Tom Lease, provided we get $ 40,000 for our half interest. If a sale is made of the Mo-La 8 acres [describing it] no commission will be paid you. If you sell any other properties of the Mo-La Oil Company I will pay you a fair commission."

Vining testified that among others he found G. A. Igou and F. C. Kaempff, experienced oil producers, took them to defendant's office in Kansas City and introduced them to Mr. McClearn as prospective purchasers of both properties. Shortly thereafter McClearn raised the prices of the properties and agreed to pay plaintiff a commission of $ 5,000 if he should procure a purchaser for the half interest in the lease of the twenty acres for $ 45,000, and $ 12,500 if he should procure a purchaser for the four hundred acres at $ 250,000.

Plaintiff got his information about these properties from McClearn, and gave Igou and Kaempff a statement of the amount of the production of oil. Continuing, Vining testified that for a while during the fall of 1919, Igou and Kaempff felt they could not pay so high a price as was asked for the two properties and the deal was concentrated on the twenty acres. They thought the four hundred-acre tract was too much, but they began to consider it again. He kept after them and Mr. Kaempff said he would go and investigate the property. Kaempff went to Louisiana early in January; the deal plaintiff had in mind when Kaempff went to Louisiana was for both properties. Plaintiff did not know of an instrument or contract signed December 11, 1919, which had to do only with the twenty acres; plaintiff kept in close touch with the transaction as far as they would let him; he took sick and went to bed for several weeks soon after Kaempff went to Louisiana; McClearn avoided plaintiff and would not talk with him; this was after Kaempff returned from Louisiana, and plaintiff was not called into counsel for closing the purchase; he talked with Igou over the 'phone, but was too sick to get out; he learned in some way that the negotiations involving these properties had been reduced to contracts; Mr. Benninger was the Mo-La field man in Louisiana, but plaintiff had no contract with him; Kaempff was a stranger down there and plaintiff wanted Kaempff to go to see Benninger; plaintiff interested Igou and Kaempff and their associates, meaning the people that went in with them, forming the Ajax Producing Company, and bought these properties; Vining believed McClearn, Igou, Kaempff and Benninger are the officers of the Ajax Producing Company; plaintiff had nothing to do with interesting Benninger in these properties more than having Kaempff look Benninger up, and McClearn was already interested in the property as the treasurer of the Mo-La Oil Company; McClearn took the matter out of plaintiff's hands as fast as he could; plaintiff talked to Kaempff about the transaction after he returned; there may have been a little period in which he did not urge the sale of the four hundred acres, because they did not want to load up with so much, but later on they made some other financial arrangements and were ready to talk the four hundred acres, and when Kaempff went to Louisiana he was anxious to inspect the four hundred acres, which he did, and came back very much pleased and closed the contract for it; plaintiff was sick when it was closed, and when he got back to business he went right to McClearn and demanded his commissions in the amount of $ 17,500; that was before March 15, 1920; McClearn said they owed plaintiff the $ 5,000, but they did not owe him the commission on the $ 250,000, as plaintiff was not the procuring agent.

F. C. Kaempff testified that he and Igou knew nothing about these properties. Vining first brought a description of them in July, 1919; that he and Igou were interested in the purchase of the twenty and four hundred acres, but did not pay much attention till in September when he went with Vining to McClearn's office and talked about the twenty acres; he was trying to get the data from McClearn as to the runs; when they got together they took up the twenty acres; Vining had called his attention several times to the four hundred acres, which at that time was a little too high-priced and too much for them to carry. The first contract was made in December; they finally made a contract with the Mo-La for $ 326,000; the consideration for the four hundred acres was $ 250,000.

G. A Igou testified that Vining introduced him to McClearn; that he offered witness and Kaempff the twenty acres and the four hundred acres; the negotiations started in the latter part of 1919 and swung along until the first part of 1920; that he had not heard of the properties until Vining presented them and did not know who owned them; that they negotiated with him for the properties; that there was paid under the...