94 Neb. 79 | Neb. | 1913
During the year 1907 the J. H. McShane Timber Company, a corporation, owned property and. a business in the Big Horn mountains in Wyoming, which had cost the company about $400,000. The capital stock of the company was $250,000, all of which was held by J. H. and F. J. McShane. In the beginning .of the year the company was largely involved in debt and the business was unprofitable and very much embarrassed. It became apparent that the business could not be continued and that a sale of the entire property and business would soon become unavoidable. This plaintiff had been conducting a somewhat similar business in Idaho, and was contracting for one in the state of Washington. He heard incidentally that the McShanes were anxious to sell their property
In November, 1908, the creditors became insistent, and the McShanes became unable to obtain further money or supplies so as to continue the operation of the plant. They were indebted to the First National Bank of Omaha in the sum of $74,000, and to Paxton & Gallagher in about the sum of $25,000 for supplies, and to the Bank of Commerce of Sheridan, Wyoming, in a large amount. When Paxton & Gallagher refused to furnish supplies, Mr. McShane appears to have stated to Mr. Pearce, their manager, the condition of the company’s affairs, and informed Mr. Pearce that it was impossible for them to continue the business, and suggested that it would be better to go into bankruptcy or have a receiver appointed. Mr. Pearce suggested that it would be better to turn the property and assets over to trustees to hold and manage the same for the creditors, and upon this suggestion a contract was entered into appointing Mr. Pickens, of Paxton & Gallagher, Mr. Davis, the first vice-president of the First National Bank, and Mr. Perkins, president of the Bank of Commerce of Sheridan, as trustees, and all of the property was assigned to them in that capacity. The trustees took possession of the property in November, 1908, and continued the business. In January, 1909, the property was sold to McPherson & McLaughlin for $182,850. While this sale was being consummated, this plaintiff served notice on all the parties interested that he claimed a commission of $25,000 if the property was sold, and afterwards the plaintiff began this action in the district court for Douglas county against J. H. and F. J. McShane and the McShane Timber Company and the three trustees to recover the $25,000 commission. Upon the trial, when the evidence was completed, the trustees moved for an instructed verdict in their favor. The McShanes
The action was based upon the contract, authorizing the plaintiff to sell the property, to recover the $25,000 agreed commission for doing so. There was no allegation of the value of the plaintiff's services. The plaintiff insists that there is sufficient evidence of the value of the services to support the judgment, and also insists that under the evidence the plaintiff was entitled to the full sum of $25,000, and that the defendants cannot complain of the judgment for a less amount. With the contracts above stated between the plaintiff and McShane, the latter employed the plaintiff to assist in the management of the business and care of the property, and to put it in condition to sell. They paid him $800 a month, and agreed that his salary should begin from the preceding January. They also paid all of his expenses incurred either in the care of the property or in endeavor to sell. The plaintiff insists that the salary was paid him because the employment would require him to employ a man to manage his business, and that plaintiff gained nothing by receiving this salary. But the plaintiff testified that in May, 1907, he was operating a lumber plant in Chance, Idaho, and “had gotten out all our timber and still had all of our property, and I was undertaking to get our money out of it, and was tied up in another contract I was figuring on." He closed this latter contract by purchasing a mill at Springdale, Washington. He says that his plant at Springdale was to “start up” April 1, 1909. He looked after his personal interests himself, and there is no evidence that he employed a man in his place or was put to
We have attempted to state the facts sufficient to show in a general way the nature of the plaintiff’s employment and the necessary construction of his contract. Neither the plaintiff nor any one of the other parties authorized by the McShanes to sell the property nor Mr. McShane himself can be said to have done so. How much the efforts of any one of them contributed to the result it is difficult to determine. The sale was consummated and closed by the
The judgment of the district court is reversed and the cause remanded for further proceedings.
Reversed.