109 Kan. 94 | Kan. | 1921
The opinion of the court was delivered by
Jessie Dunn recovered a judgment against John Madden and C. E. Cooper, as commission for finding a purchaser for a royalty interest in oil and gas production from a certain tract of land, and defendants appeal.
It appears that C. E. Cooper had procured a ten-day option on the royalty from the owner at a price of $25,000 and desired to sell it an an advanced price, and $40,000 was named as his selling price. It was alleged that he proposed to the plaintiff
The main contention of defendants is that the evidence is insufficient to uphold the findings and verdict of the jury. That there were negotiations between the plaintiff and Cooper as to the part she was to take in inducing Bellport to purchase the royalty is not disputed, but they disagree as to the terms of the arrangement made and the compensation to be paid.- Plaintiff’s testimony was in effect that Cooper promised her $1,000 if she would induce Bellport to buy the royalty. Cooper’s testimony was to the effect that if she procured Bellport to buy the property at a price of $40,000, he would make her a present of $1,000, and in this he was supported by the testimony of John Madden, jr., who stated that he was present and heard the conversation between the parties. There were some circumstances in the case confirmatory of the testimony of the plaintiff. Whether she was to have the stipulated commission for procuring Bellport to buy the property or to be paid upon the condition of a sale at the asking price of $40,000 was an important fact but only a question of fact, upon which the testimony was in direct conflict. It was a question for the triers of the facts. Some inconsistencies and improbabilities in the testimony of the witnesses for plaintiff are pointed out, but after all the result depended upon whether the jury and trial court gave credit to the witnesses of the plaintiff or .to those of the defendants. The rule consistently followed in this court for more than a half century is that this court on appeal
Another point of contention is that there was no evidence to uphold the finding that the defendant, Madden, was liable as a partner in the oil transaction. He insists that he had no other interest or part in the transaction than to advise Cooper, in whose name the option was held, as to the form of the contract and the legal questions involved in the transaction. Testimony to this effect was given. On the other hand, there was testimony tending to show that he was jointly interested with Cooper, and also of admissions made by both Madden and Cooper that the former had a partnership interest in the deal. There was evidence too that he took a part in the negotiations beyond that of giving legal advice as to the sale of the royalty, and further, that he shared in the profits of the sale. It may be said that testimony was given to the effect that the $2,400 paid to him from the proceeds of the sale was payment of a debt of gratitude owed to him by Cooper and was not paid as a share of the profits of the transaction. As the defendants contend, the fact that defendants were partners in the practice of law does not, of course, tend to show that they were partners in the oil transaction, but the court was careful to instruct the jury that before they could find that Madden was liable to the plaintiff it must be shown by a preponderance of the evidence that they were partners in this particular oil deal. On the evidence in the record it must be held that it is sufficient to warrant a finding of a partnership liability of Madden.
We find nothing substantial in the objections to rulings on ■the admission of evidence. Nor do we find anything substan
Complaint is made of an answer of the jury .to the following special question: “What service, if any, did the plaintiff perform to bring about or induce the sale of the oil royalty outside of the mere writing of said letter ?” The answer first returned was: “Sale made through her efforts.” The court required the jury to make a more complete answer as to the services rendered and their answer as finally returned was: “Sale made through her efforts. None.” The meaning of the finding is reasonably clear and is that the only service performed or effort made by plaintiff to induce the sale was the writing of the letter. This letter it appears was sufficient to bring a purchaser to the defendants, and under the theory Upheld by the jury as to the employment of the plaintiff, was sufficient to earn the promised commission.
It is contended that the findings relating to the partnership liability of Madden are insufficient. The following questions were asked and answers given:
“Q. 2. Was the sale of the oil royalty by Mr. Cooper on his own account and not a partnership transaction? A. No. .
“Q. 3. Did Mr. Madden ever employ the plaintiff to sell said oil royalty to Mr. Bellport? A. Yes.
“Q. 4. Did Mr. Madden ever know of the claim of plaintiff for compensation until long after royalty was sold? A. Yes.
“Q. 6. Did plaintiff ever tell Mr. Madden that he owed her any sum whatever for services rendered in the sale of royalty? A. Yes.
“Q. 7. Did Madden directly or indirectly have anything to do with the sale of said royalty to Mr. Bellport? A. Yes.
“Q. 8. If you answer the foregoing in the affirmative state wherein he had anything to do with said sale. A. In partnership business, yes, directly interested by approving of the contract.”
One of the contentions is that these findings are without support in the evidence, but as already indicated this contention cannot be sustained.
Particular complaint is made of the last of the findings and it is argued that as made it supported the theory of Madden that he only acted as an attorney for Cooper in approving the form of the contract. The answer is not as definite as it should have been made, but it is manifest that the jury did not intend
Finding no prejudicial error in the proceedings, the judgment is affirmed.