*1 SUPREME COURT OF MISSOURI, Vining v. Mo-La Oil Co. complained II. It is also motion arrest that the statute under which the defendant was found guilty is unconstitutional under Section Ar- Title relating tide IV, Constitution, the title of Act. subjects specific bill. No violation is pointed out the motion and we find none. complained
III. It is further in motion in arrest fatally the information is defective because it does driving not forth that set defendant was a motor public highway vehicle aon while intoxicated. The' paragraph quoted require, above, statute in the does not driving offense, as an element of the that the should be public highway. aggrava done aon Circumstances of legislative contemplation, tion were in the as indicated by punishment range the wide for fixed the offense. [State 24.] v. 303 Mo. l. c. Hatcher, Attorney-General, paragraph
As well stated regulation, prohi- G Section 27 “is not a road but against person operating bition an an auto- intoxicated ’’ mobile. judgment We find no error in is record All affirmed. concur. Appellant,
H. B. VINING, MO-LA OIL COMPANY. v. Two, Division December 1925. Option: Agent’s Cancellation: OF SALE: CONTRACT Commission.
1. which sale of oil lands is not A for the revocable at contract vendee, mutually obliga- caprice of either vendor or but or will option enforceable, agent tory an for purchasers produced cannot who be denied his com- the vendor merely because, knowledge consent, without his or it was missions agreement voluntarily the mutual cancelled of the vendor later purchasers substituted in and another its stead. If the purchasers produces designated prop- agent vendor accepted binding the vendor and a are erties properties is into between vendor entered sale OCTOBER TERM, purchasers, subsequently and such without it is cancelled agent’s commissions, knowledge consent, or he is entitled to whether not the sale is consummáted. *2 Agent’s Producing 2. -: Commis- Cause: Final Consummation: by agent agreed sions. In an undеr a action an commissions leases, in- contract with an the defendant vendor sale of oil jury telling plaintiff, pursuant written struction employment, to his the accepted “procured purchasers” “defendant and purchasers purchasers procured so so and with the said contracted procured by defendant,” plaintiff, by verdict on terms made their plaintiff, though con- should be for terms the “even the actual negotiated purchasers tract were and the between the defendant knowledge plaintiff” the “even without though or of the and assistance sufficiently price paid,” purchase the entire never required jury plaintiff producing the to find that was “the cause” being and, commissions, of the sale out of which he claims there support it, clearly evidence to submitted the issues. Agent -: Abandonment: Another and Pur- 3. Substitution of plaintiff writing chaser. Where had been authorized sell two tracts, hundred, agreed one of acres and four at another of prices each, agreed and for the of the commissions for and sale twenty-acre through efforts, been his an tract had consummated you plaintiff that “under the cannot instruction any evidence allow affecting matter of transaction the commission in the the evidence, and 400-acre tract” is a demurrer to the admits the truth by plaintiff all evidence adduced and all reasonable inferences jury may therefrom, properly given un- draw cannot appears negotiations purchasers produced that the between less it abandoned, negotiations, by plaintiff and new in which were plaintiff part, substitution of different had resulted no plaintiff pro- there was And where evidence sale. by plain- Kaempf, pleased terms was so with the offered duced who inspected purchase of both tracts that he tiff for deal, negotiations go Benninger into and the induced off, Kaempf plaintiff brokеn ven- were not but the between secretly closed the deal concealed it from nevertheless dor agreement proper- the sale of into an and entered Kaempf Benninger company both which to a ties instruction, by proper owners, rightly, submitted the court cause, producing question jury was the whether properties, inspecting Kaempf, was dissatis- after and whether negotiations, fied, in which had new no into and entered part. Payment. Pro-Rata If Commissions: Cancellation: -:4. authorized.agent. knowledge vendor, of the without the consent 32' SUPREME COURT OP v. Mo-La Co.
(cid:127) hy agent purchasers produced cancels the contract of sale to commission, accepted by vendor, agent is entitled to agreed price pro-rata purchase even if he had it to take as the paid, part paid. and a of it was never Voluntary by 5. INSTRUCTIONS: Covered Others: Withdrawal. fully others error to refuse an instruction which is covered given. withdrawn, voluntarily leave And where defendant has court, jury, given com- instructions he cannot read to plain hy him instruction asked court’s refusal of another fully given which was withdrawn. covered those so J., Appeal Error, 2626, 714, Brokers, J., p. C. n. 76. 9 C. 3 Section 614, 87, 68; p. 33; 90, p. 603, 97, p. 596, 32, Section n. n. Section Section 620, 20, 21; 99, 619, 44; p. p. 615, 22, 25; p. n. n. n. n. Section 46; 66; 130, p. 661, 102, p. 65; p. 624, 69. n. n. Section 623 n. Section 644, Contracts, 643, 608, 45; p. 609, p. J., n. n. Section C. Section Injuria, Trial, Cyc., p. 69; p. Volenti Non Fit n. n. 19. Cyc., p. 217, n. 76. Appeal H. from Circuit Court.—Hon. James Jackson Judge.
Austin, *3 directions). (with and remanded Reversed appellant. Dickinson S Hillman for (1) evidence of Ms contract of Plaintiff offered purchasers procured property and that he agency for and officers introduced them to defendant’s and that pur- efforts to induce continued his twenty-acre buy property chasers to both the and the property accepted four hundred-acre defendant purchasers such and entered into a contract of sale of making both of its own and that it treated voluntarily sale that defendant transaction can- plaintiff’s contract of sale celed such without consent subsequent into contracts entered of its own mak- ing purchasers such that defendant received be- purchase price $118,818.79 $123,818.77 tween purchasers repaid and became indebted to $13,- peremptory 000. Therefore instructions in the na- properly demurrers ture of Knisely evidence were refused. Mo. 372, 256 178 Leathe, 453; v. S. W. Lombard Morgan App. 170 v. Sills, 555; Keller, Mo. 194 v. Mo. 663. plaintiff’s (2) no There- was error three instruc- OCTOBEB 1925. TEEM, 33 Knisely tions. 178 W. 256 S. 372, v. Mo. Leathe^ App. Morgan Kel- v. 453; Lombard 555; v. 170 Mo. Sills, App. Major, 431. ler, 178 Mo. 663; 194 Mo. v. Eoss (3) should trial Defendant’s motion a new requested have by in instructions been sustained for errors by any, defend- it because the invited errors, Printing E. v. ant. 1276, 1513; S. secs. Globe Cook Lippincott, 758;W. Co., 227 v. 182 S. 471; Mo. accepted (4) Bank v. 336. Defendant Co., Ins. 283 Mo. purchasers procured the contract cancelled it. December made plaintiff’s con- consent defendant without option con- not an sent. an enforcible It was Knisely v. 372; Sills, 256 Lombard Leathe, tract. v. Mo. Morgan App. 663. Mo. 555; Keller, v. 170'Mo. respond- Henry and Caleb Monroe Conrad 8. 8. ent.
(1) of de- instructions in nature Defendant’s nature of a murrer to evidence de-. given, (a) have should been murrer to all the evidence the contracts and both 11,1919, The contract of December option February and not contracts, are dated employed plaintiff alleges he was which sale, contracts of procure. 596; Halderman, 254 Glass Coal v. Mo. Co. App. Zeidler v. Mo. 539; Walker, 103 Mo. v. Eowe, (b) App. Eamsey A real Mo. es- West, 118; v. employed agent,, is not sale, to make a entitled tate option procuring of a mere con- commission (Brokers) v. 603; Walker, Zeidler 41 Mo. tract. 9 App. J.C. *4 App. Eamsey Eeiger Bigger, 421; 29 Mo. v. 118; v. App. Trickey, 204 676; Crowe v. U. S. 228. West, 31 Mo. by entering option agree- (c) into defendant, The performance accept did ment, Bigger, purchaser. Eeiger undertaking 29 Mo. find v. (2) fatally App. Plaintiff’s instructions are 427. de- require jury in that to find that fective fail procuring cause the transactions Sup. 312 Mo. —3.
34 SUPREME COURT OF
Vinlng Oil v. Mo-La Co. upon which Poor, he claims a commission. Russell v. 133 App. Ramsey App. Mo. 728; West, 686; v. 31 Mo. Law v. 220 Paddock, 969. And this defect is not W. S. cured by proper given instructions on behalf defendant. App. Russell v. 133 Mo. Poor, 728; Law v. Paddock, (3) 220 S. though plaintiff Hall 969;W. v. Mo. 369. Coal 260 Al- Co., negotiated had as to the four tract, hundred-acre the fact contract was closed with them and others does not give right him a to a commission. Donaldson v. Houck, App. 441; 213 Field, Mo. Dillard v. 206; 168 Mo. Crain v. App. Ramsey Miles, 154 App. Mo. 338; v. West, Mo. HIG-BEE, C. Plaintiff sued defendant for $17,500 and interest for commissions on sales of certain oil leases A verdict for in Louisiana. for $19,832.08was ground set motion for trial, aside on new that the giving refusing instructions, erred in court plaintiff appealed. agency had an oral with the de-
Plaintiff рlain- McClearn, fendant’s Mr. who treasurer, wrote August confirming on tiff the terms of the oral substance, as follows: Vining. “Mr. H. B.
“Dear Sir: “Confirming regarding verbal our conversation com- you selling following prop- missions to through erty any H. Louisiana Mr. Lowerre or other parties: get you $10,000 are to a commission of
“You sell Company [here the Mo-La acres follows de- scription] provided property in Caddo Parish, agree you I also $200,000. $3,000 sold com- mission on the sale of the Mo-La Oil half in- description] [here terest in 20 acres follows Caddo provided Lease, Tom known as Uncle we Parish, La., get If a for our half interest. sale made of $40,000 it] [describing no commission the Mo-La acres will be *5 TERM, Vol. OCTOBER
Vining v. Mo-La Oil Co.. you any you. properties If sell other of the Mo- ’’ pay yon a fair La Oil I will commission. Yining among testified that others he found A.Gr. experienced Igou Kaempff, producers, P. and C. oil took City them defendant’s officein to Kansas and introduced purchasers prospective them to Mr. McClearn as of both Shortly properties. thereafter McClearn raised the prices properties agreed plaintiff pay and a procure purchaser commission he $5,000 should a twenty for interest in lease the.half acres for procure purchaser $12,500 if he should a $45,000, the for $250,000. four acres at hundred got prop-
Plaintiff his information about these gave Igou Kaempff McClearn, erties from a production statement the amount of oil. Con- tinuing, Vining during for testified that a while Igou Kaempff they fall of felt not could price high properties for so asked the two was twenty They deal was concentrated on the acres. thought the tract four hundred-acre too much, was but kept began again. they He to consider it after them and Kaempff go investigate proper- Mr. ty. Kaempff he would early January; to Louisiana
went the deal Kaempff plaintiff had in mind went when to Louisiana proрerties. both did know was for Plaintiff of an signed or contract December instrument which plaintiff only kept acres; had do with touch with the transaction as far as close would let several took sick and him; he went to bed weeks soon Kaempff went to McClearn Louisiana; after avoided plaintiff him; not talk with was would this after plaintiff Kaempff from returned Louisiana, was closing purchase; he into counsel not called talked ’phone, get Igou but too sick over the was out; way negotiations involving in some he learned had been reduced contracts; these Mr. field man in Louisiana, but Kaempff strang- plaintiff him; no had Kaempff go there and er down wanted COUNT OF SUPREME v. Mo-La Co. Benninger; interested see meaning people associates, and their that went in *6 Ajax Producing forming Company, them, with bought properties; Vining believed these McClearn, Benninger Kaempff Igou, are the officers of the plaintiff Company; Ajax Producing nothing had to do Benninger properties interesting in these with having more than Kaempff up, look and McClearn was property already interested in the as the treasurer of Company; McClearn took the the Mo-La matter out plaintiff fast as he could; hands as talked Kaempff the transaction after about he returned; period may little in there been a which have he did. not urge they hundred acres, of the four the sale because up they much, did not to load so but later on want arrangements ready made some other financial and were Kaempff and when acres, to talk the four hundred went inspect four he anxious to Louisiana was hundred very pleased he and came back acres, did, which much plaintiff for it; contract and closed the was sick when got he back to business and when he closed, it was went right and demanded his to McClearn commissions before that was March $17,500; amount of 1920; they they the $5,000, owed but McClearn said him the cоmmission on the owe $250,000, did not as agent. procuring not the Igou Kaempff he and testified that F. C. knew noth- Vining properties. brought ing first these about de- July, scription that he 1919; of them twenty purchase of the and four interested hun- Sep- much till attention but did acres, dred Vining he went with McClearn’s when office tember twenty trying get acres; he was and talked about they got runs; to the when from McClearn data the together they up Vining acres; took had the four times to attention several hundred called high-priced a little too time was at acres, which carry. first The them to much for and too finally a contract made with December; made in OCTOBER TERM, 1925/ Virdng v. Mo-La Oil Co.
Mo-La for $326,000'; consideration for fonr hun- dred $250,000. acres was Igon G. A. testified that him introduced
n Kaempff that he McClearn; ty offered witness and the twen- negotiations acres and the four acres; hundred part swung started in the latter along of 191-9and un- part til the first that he 1920; had not heard of the Yining presented until 'them and did not they negotiаted know who him owned them; properties; that there was under the contract a little less than $100,000. attorney
Caleb Monroe, S. for the defendant since organization secretary company its in 1918 and at the time of the trial, The testified: first contract be- Igon tween the defendant and bears date December but was executed December 31, 1919, *7 deposited Exchange and in in the escrow Central Bank; negotiations after that contract executed new started a and second contract was executed dated Febru-
ary voluntarily 9,1920, and the first contract was canceled. Igon The Kaempff second contract after was drawn agreement and their associates had an with reached Company, Mo-La Oil and the contract embodies that agreement. At the time the contract of December 11, 1919, was executed and coincident therewith there was executed a contract & Tom Oil Gas Uncle and also a contract between the Uncle Tom Oil & Gas Company, Igou Messrs. and the Central Exchange being part National Bank, the three contracts (Here of the same transaction. the contract of Decem- evidence). ber in 3, Exhibit was read Company, is a This contract between the Mo-La Oil first party, Kaempff, par- and G. A. and F. C. second parties pro- ties. inter that the recites, alia, second pose organize corporation Ajax a under the name of Producing Company appropriate or some other name, capital with a stock 2,000',000 into $2,000,000,divided par pur- shares, of the each, value of dollar one pose acquiring an in an undivided one-half interest COURT OF SUPREME v. Mo-La Co. twenty gas lease held defendant
oil and on acres with under a contract Uncle Tom Oil interest and its Company, dated November Now there- & Gas premises, par- etc., first in consideration of the fore, deposit agree execute in blank and escrow ties Exchange City Bank of Kansas the Central National gas assignment lease half interest oil an its assignment rights twenty an its under acres, on said Tom, with Uncle of November said contract operations respect drilling Company, Oil & Gas personal all a bill of sale of on acres, said assignment property twenty acres. Said on said parties made in blank second are bill of be sale shall grantee upon delivery of fill in name of authorized to parties agree organ- assignments. The second said corporation mentioned and sell above ize $2,000,000 par than thereof at not less or the stock cause to sold proceeds stock, such less com- sale of deposited twenty per to be cent, not to exceed mission of moneys paid Twenty-five per cent into bank. applied purchase shall be the price, sold bank stock assignments parties first $54,000,due and when suсh sum is mentioned, bill of above sale assign- parties by it deliver said bank shall to first upon their bill of sale to second ments party provided that the first It is further written order. operate property possession óf and shall remain paid, amount received and the net $54,000 until the during party term of this from oil runs first *8 operation, development expense shall be and of less party. upon applied Then first follows due the the sums agreement the bank which recites the with escrow payments all are foregoing unless etc., and contract, designated, then this contract time made within copies contract, and the Tom contract the Uncle become and void, be and null shall attached, of which are deposited assignments conveyances in es- and the party, certifi- first be delivered to crow shall OCTOBER TERM, of party cates stock balance of tbe fund in tbe hands of the parties. third be delivered to shall second lengthy are These documents and elaborate, but the They foregoing features are all we are concerned with. signatures, by are each marked “canceled” across agreement parties. of all deposited
There were also as bank, escrow agent, assignments twenty-acre lease and the bill stipulated of sale as in the contract of December 11, 1919, by hereby Company (quoting) which the Mo-La “does represented sell, transfer deliver unto-, by Kaempff.” G-.A. and F. C. Kaempff’s
Witness continued: On return from negotiations Louisiana there were further con- and a twenty tract was entered into for the sale of the undeveloped four hundred as well as 2600 acres, acres of by Benninger, land owned and the of contract, Decem- agreement par- ber 11, was canceled mutual all of Exhibit was 1\ pro- ties. This new duced general Caleb S. Monroe. witness, It is same
terms the contract of December 11, and is plaintiff. the contract reliеd on It bears date February Company The 9, 1920. Mo-La Oil is the first party, Igou, Kaempff, A. and Gr. F. C. M. of McClearn, City, Missouri, Kansas S. of W. Shreve- port, part. Louisiana, are the of the second (a) party that the first the owner recites and holder gas upon of oil, certain mineral leases to and lands and a Louisiana, certain with the Uncle Tom Company, (b) &Oil Gas November 27, 1918; dated parties propose organize corporation the second un- Company, Producing ap- der the of A]ax name or other propriate capital name, stock $2,000,000, purpose property acquiring of the Mo-La Oil proceeds from and other corporation; sale stock in said considera- premises tion covenants, etc., of the mutual agreed: it is *9 COURT OF SUPREME y.
Vining Mo-La Oil Co. agrees party in 1. to execute and de- First blank Exchange posit in Bank Central National escrow with City, conveyances good of Kansas and sufficient following property: (a) interest an undivided one-half gas (de- twenty oil acres and to the lease on rights scribing it); (b) all the of the Mo-La Oil Com- pany under the of November respect drilling, Company, & Tom Uncle Oil Gras descriptions long (c) it which, follow several etc.,- here (d) agreed, covered four hundred acres; (e) eight-acre personal property all on above- tract and conveyances properties described and leases. shall Said parties may fill in the name of be blank and second proposed corporation grantee delivery of on said said conveyances, pursuant of
to the terms the contract. organize agree: (a) pro- parties 2. Second said Ajax Producing capital posed Corporation with stock deposit (b) of the stock with the escrow $2,000,000; Exchange be and deliv- Central National Bank to issued provided; (c) to at hereinafter sell stock ered as proceeds deposit par bank in “said not less than of not to of such a commission exceed sales, less per cent. be set aside for
3-5. of shall 350,000 shares the stock purpose party paying above-described first moneys properties, paid bank from sale applied purpose. such stock for that to be paid purchase price first 6. to be The total party be $326,- above described shall paid bank authorized to 500, and when that sum is upon conveyances their deliver the second prece- payment made a Full condition written order. conveyances. delivery dent monthly pay- paragraph provides '8. This months. ments the in four ; whole to party from first oil 9. The net amount received development operation, expense shall runs, less properties. purchase price be credited TERM, OCTOBER y. Oil Oo. produced plaintiff’s Monroe Exhibit 8, The witness *10 February which he 10, 1920, an as- dated was stated Company signment by the Mo-La Oil of the four hundred twenty of its interest acres. was and This acres ‘‘ hereby bargain It recites: does and in evidence. read repre- over deliver to-, set and sell, transfer, Kaempff, by duly A. F. authorized, sented G. and C. interest in and an one-half certain oil undivided that descriptions Here follow etc. as contained in lease,” February the of This contract, contract agreement by par- mutual the Exhibit was canceled of 7, entry signatures signed by an across and ties parties. Monroe further testified that these
"Witness contracts adopted corporation; during negotia- that up leading execution of to the the first contract on tions repeatedly holding Vining 31, he saw Mr. con- December Parsons and of McClearn, ferences with other directors Company, attorney Winger, Mr. Oil Company, Tom and at various conferences the Uncle Vining present, did but witness not know Vin- Mr. ing’s was relation the transaction;
name nor his that Vin- Exchange ing Bank at the Central when contract was informed that some one witness that Vin- executed; was agent, ing that time real estate was the first was negotiations; Vining the interest had in the knew witness negotiations Vining been industrious all the had that up of December leading the execution contract to. twenty-acre affecting tract, after time 31, agent about McClearn as talked with witness Company. Mo-La Oil purchase price, agreed $326,500, It stipulated contract, $45,000 was for the in this four hundred acres. $250,000 acres agreement (defend- an escrow A called February 3), contract of which this Exhibit ant’s deposited in the Ex- Central attached and February change executed Bank, National Company, Mo-La Tom Oil Gas the Uncle & SUPREME COURT OF MISSOURI, Company, Benninger Shreveport, and S. W. Louisi- parties part, Igou, ana, of the first and G-. A. F. C. City, and M. MeClearn of Missouri, Kansas Benninger, parties part, S. W. of the second and said party. bank third refers a contract between the February Mo-La Oil 1920, with second parties, Benninger and a between S. contract W. sec- February of, ond 9, 1920. It recites that all con- veyances mentioned in the Tom Uncle the Mo-La Oil contracts have been deliv- ered to the bank and that all certificates stock Ajax Producing Company have also been delivered provided bank. It is then out of the sale of stipulated this stock as Tom the Uncle Mo-La' per ten shall contracts, cent be set aside maintain and *11 charges properties overhead of the described in monthly contracts; said that statements shall be filed expenses operation development with the bank of properties, the amount of revenue received production remaining ninety from the of oil. Of the per moneys from cent of received sale of stock Ajax Producing Company paid there $10,000 shall Company purchase price to the Mo-La Oil described in said Mo-La and the paid per twenty out residue shall be as follows: cent Company, sixty per Oil & Uncle Gras cent to Tom Company, per the Mo-La Oil ten cent S. Ben- to W. ninger, all shall on of which be credited said several conveyances not be contracts; shall' delivered paid $132,500 until been the Uncle Tom there has Oil Company, Company, & the Mo-La $326,500 Oil Gras Benninger, $100,000 S. in accordance to W. with the payments that if contracts; terms of said full are not contracts shall become made four months the said within void. null and (plaintiff’s Exhibit
The contracts 7 and defendant’s 3) by mutual 15, canceled March 1920, were Exhibit thereto. consent OCTOBEE TEEM, 1925. request
At the of the defendant the witness Mon- produced roe and read in evidence defendant’s Exhibits Eebrnary 4 and 5. 4, Exhibit 9, dated 1920, witness tes- signed by copies tified was the bank March 15, 1920, and parties, place taking delivered of defendant’s operations abeyance Exhibit and all 3, in prepared were held un- til defendant’s Exhibit could be and exe- January cuted. Dеfendant’s Exhibit 5 is dated charge negotiations Witness testified he had of these never heard the four hundred acres mentioned until Igou, went Louisiana; that on return Kaempff, Benninger nego- and MeClearn entered into tiations with other officers directors of the Mo-La Company; witness see did until the except other contracts executed, the contract dated January paid 3, 1921; that $38,818.17was bank to Company; through the Mo-La Oil that otherwise than Company the bank the Mo-La Oil and others interested Kaemplf received from and their associates, Ajax Producing Company, $80,000 $85,000 on the paid $326,500, $13,000 which must be back reduced Ajax Company; payments these were made under purchase January contract of 1921. The entire price has not been now and the possession four hundred-acre tracts. substantially
Defendant’s same Exhibit except provides it terms as first Exhibit *12 party, Company, agrees assign to Mo-La Oil in deposit in blank and the bank the with stoсk cer- escrow capital representing tificates all of the stock of the Mo- executing assignments Company La of Oil instead or conveyances. provides that shall $38,818.77 It Mo-La in cash the balance, $287,681.- monthly beginning in installments of 23, $15,000, on Jan- uary 10, until the of the 1921, whole $326,500,with in- paid. stipulates terest, is that time is of the essence pay in of the contract the event of failure that, to Company any or Mo-La the interest installment, when SUPREME COURT OP y.
Vining Oil Co. Mo-La drilling, shall any of the contract due, item of cost to be become etc. It further declared void, null and option an es- Exhibit 4 is an Defendant’s contract. agreement Ex- to defendant’s crow between the hibit 3.
Referring February counsel for to the contract of say: respondent “The in agreement facts terms their statement of very to those of similar the of the new assign- deposit of as to the contract dated December 11 deposit by parties, the first stock second ments the partiеs, payment parties, the second sale of stock par- money it the first and distribution the bank upon assignments delivery escrow ties price.” complete payment purchase For MeClearn testified he did not defense, know Vining Ig,ou until A introduced deal them. already the Uncle Tom and been started had with Vining put twenty he came and said could Mo-La, three or after deal; that four months acres 1919) Vining (August written, said was letter he ought and that we $40,000 sell it for raise could price price. if said advanced Witness be raised to $5-,000; the commission would $45,000 that Vining mentioned the hundred never four acres to wit- already had been closed on the deal ness; At time December acres. 1919, $5,000 agreed negotiated Vining witness Vining money in; came said, “Yes;” that Vining no other transaction had with re- witness twenty-acre gard Vining tract; to this March pay his when the Mo-La would commission. Wit- asked you arrangement you pay president pro said the was to ness he said would see Parsons, Witness rata. Company, pay part money if he would of that he collected. said had would take it
he fellows owe me said, $12,500 “You then four get going I am it I have to acres, hundred sue you.” as far as that Witness deal is concerned n company and the made it, Mr. witness *13 OCTOBER 45 TERM, 1925.
Vining v. Oil Co. Mo-La give Vining-a give any right com- didn’t Mr. witness only brought up; that the mission, it never because dealings Vining the four hundred-acre with Mr. about August tract ger 1919 Bennin- ; that Mr. the letter Company and was a Oil stockholder company. field man for the Kaempff
S. W. testified: came to Shreve- port January, in he 1920; had taken over the said properties; may acres asked to he and see him have mentioned the four hundred acres. told I I had he like to acres; leases on he said would see looking that; I asked it. After it over $60,000 for he would, party making if him in said I be a with deal manager superintendent the Mo-La and be put thing acreage, give my in the whole he would help deal; me make that he $100,000 to would take providing people acres, the four rangements his made hundred ar- Igou Kaempff stock; to sell the property, could handle associates but if I would they put acreage my anything in wouldn’t have up told him it show. I have taken would with Mr. City; McClearn. I came to Kansas had several conver- Kaempff Igou; they agreed sations with Mc- Mr. go company help and I Clearn would it try property; would and make a deal on the go consideration was that McClearn and I would something. be officers or We consented.
Kaempff agreed day. with the Mo-La I vice-president general manager was afterwards Ajax Producing Company, manager and field after properties, salary it took over the but received no from my salary Company; from it; the Mo-La came when see came to me in Louisiana he nothing Vining, about did not mention the four hundred get it, him acres, and I commenced interested I put Ajax Company acres intо the price at the No wells $100,000. had been of eight drilled on it; there are wells hundred acres; four there were six they bought producing eight when it; wells the' wells SUPREME COURT OP v. Mo-La Co. *14 producing are I to 200 barrels; about 150 McClearn property. selling in interested tbe
Tbe court overruled a demurrer to tbe evidence. hearing At tbe of tbe motion for tbe trial, court new entered an order tbat tbe enter a will remit- titur so as to reduce in favor tbe verdict to $5;500, the court will overrule tbe motion for trial new judgment judgment in arrest of and enter for $5,- 500; tbe otherwise, court will sustain tbe motions. Two days later this order set aside, and tbe motion for ground trial new was sustained on tbe tbat tbe court giving refusing erred in instructions. Tbe motion judgment in arrest of was also sustained.
Respondent’s brief contains statement of tbe va- points rious on which counsel insist the trial court erred giving refusing in logical way instructions. Tbe to appeal consider this is to discuss these contentions in their order.
I. The first contеntion is tbat tbe several contracts option read evidence are contracts and not contracts agent employed sale; tbat a real estate to make a sale not entitled to a procuring commission for tbe of a option mer® and tbat the demurrer to o tions 10n' P the evidence should have been sustained. Coun place say: parties “No sel tbe contracts do tbe second agree buy anything. place they agree No pay do parties money. first one dollar of their tbe There is no part obligation personal pay any on their considera There is no manner in party tion. which tbe first can anything except by through tbe realize sale of stock tbe assignments In the escrow bolder. meantime tbe de posited tbe holder with and escrow are not effective and tbe right to tbe income from control tbe re mained unaltered.” agreed
In tbe contract December 11, tbe defendant deposit assignment to execute and with tbe bank an tbe undivided one-half of tbe lease on the acres, parties agreed organize corpo- and the second etc., OCTOBER TERM, 1925. capital deposit ration with $2,000,000 stock and the cer- stock deposit tificate of sell bank, the stock and eighty per proceeds cent of tbe bank, out of which parties purchase price. bank should first only parties personally obligated Not were the second purchase money by raise the the sale of the stock, but pledged per- stock itself was with the bank to secure undertaking. formance of their This contract was executing party by depositing executed the first assignments parties by organizing second corporation depositing the shares of stock. It pay- true that for failure of the second make stipulated, provided ments as it is the contract would be *15 provision null and and become void. This wаs a for the Company benefit the Mo-La Oil which it could waive. “Although provision stipula- no made for notice, self-operative, tion for forfeiture is not but there must be a declaration or act or forfeiture some conduct equivalent [13 60'9.] thereto.” C. J. 608,
The contract not revocable the was at mere orwill caprice party. insisting party “The of either himself [Ibid.] forfeiture must not be in default.” But question compliance there is no this or the two subsequent February question 9, contracts of so right party of the declare first to these contracts They mutually null void is not in the case. were obligatory nothing optional enforceable; there is provisions. in their
Respondent’s support Morgan contention finds no County 254 Mo. Halderman, 596, Coal Co. v. 163 S. W. proposition buy In the submitted to Mrs. Hal agents (p. 618): there is this clause derman’s “Time payments contract, be shall the essence of this may promptly stated, are not made as above whatever paid by forfeited, shall be have been us this con ’’ be Plaintiffs shall null and were not tract void. bound ‘1 optional it an contract. Plain was held to be payment option any to refuse meet had the tiffs paid given penalty they any to lose had at as a what time COURT OF MISSOURI, SUPREME Vining v. Oil Mo-La Co. writing 636.] [Page null and void.” and so render analogous. option An The are not cases contract is where discretionary leaves it binds himself sell and one buy. [Montgomery Hundley, party other v. 527.] syl. 5; 103 Mo. S. W. February
Paragraph 6 this contract of purchase price provides that the total properties party $326,500. shall be first described twenty-acre $45,000was lease and $250.- Of this acres. When 000 for the four hundred this was voluntarily of December executed the contract knowledge plain- or consent canceled without is admitted second contract and tiff. And it this abeyance respondent’s agreement held at were escrow request were canceled mutual сon- and that both knowledge plaintiff, by or consent of without sent, February 9, 1920, third dated and delivered which the stock of the March Oil corporate Company in lieu of the assets. So sold produced purchasers for these if the accepted by the Mo-La two binding contract was entered and a into parties for sale, their became between the the sale was whether con- his commission entitled to 595.] conclusion has the [9 not. C. J. This summated sanction of authority: worthy highest laborer is respondent contended of his hire. *16 plain- voluntary defeat the contract would cancellation right commission. tiff’s to the Respondent that instructions
II. insists fatally 3-P “are defective in 2-P and 1-P, numbered require jury to find that the fail that procuring plaintiff cause of the the trans Cause.CmS ’’ a upon claims commission. he which actions descriptions, these material, instruc Eliminating read: tions you jury that if the find instructs The court “1-P. August or about that on evidence from the believe and TEEM, OCTOBER employed plaintiff agent defendant 13, 1919, the its plaintiff agreed pay the a commission of $5,000 Company’s on of the Oil interest the sale price lease,' known as Uncle Tom at the acres plaintiff $12,500 on sale the of Mo- $45,000,and to Company’s four acres ... La price hundred at the pursuant employment that to said $250,000, (if plaintiff any) procured purchasers above- accepted defendant said described procured any, purchasers by plaintiff, if on so that February or defendant contracted about plaintiff, purchasers procured, by any, if so the above-described on made defendant for terms prices, your property plaintiff, will fie for the at the said verdict damages you his at not to ex- will assess you from if further find the evidence ceed $17,500; may you payment plaintiff thereof add that demanded per per six cent annum thereon the rate of at interest demand date. from date of said to this jury yоu that if find “2-P. instructs The court plaintiff Vining, from evidence that believe purchas- did defendant, with the secure under a contract pur- property defendant, and of the ers for the buy same, contract entered into chasers even recover commission will be entitled to negotiated though the actual terms of the purchasers without the and the defendant between though plaintiff, knowledge even assistance you the en- may evidence that from the and believe find paid. price purchase tire was never you jury find “3-P. The court instructs pursuance of a believe from the evidence purchasers produced defendant contract with property and the defendant the defendant you purchasers, find and further and if dealt with said by their defendants later from evidence that believe de- transaction as sale acts and conduct treated such ’ your be for the property, will then verdict fendants plaintiff Vining.” Sup— 4.
312 Mo. *17 50 OF SUPREME COURT required clearly We think instruction the first jury plaintiff procuring cause find that the plaintiff. the sale before find for Ross could In Major, App. v. 178 instruc- Mo. 163 W. the agreed S. jury tion was that if find the defendant plaintiff] purchaser [the “if he should secure a there- forty [the acres] sale thereof made to purchaser, plaintiff,” such The he etc. would page magic court at said, 442: “There is no in (cid:127) 'procuring inducing only words cause.’ is es- incorporate sential that the in manner instruction some principle parts; any this veying clearly con- its words one of may jury idea
this be used. We think instructions were The sufficient. word ' ’ secure used . . . these instructions. There are numerous decisions which instructions couched in dif- language meaning up- ferent but the same have been [Citing many cases.] held.” very Knisely tersely rule The stated in v. Leathe, ' 257): syl. (166 agént
256Mo. S. 'When an W. em- ployed purchaser procure produced for lands has one with whom the owner enters ’into a valid bind- ing sale, commission, contract of he is entitled his though purchaser prove even to be unreliable and perform the owner refuse therefore to the contract of appeal, sale.” See same on case second 178 S. 453W. (9-10). wholly
The instructions are unlike those condemned (Mo. App.) in Law v. 220 S. W. Paddock, 969. In that if the case, Instruction was was instru- Haley sending mental John defendant or in Haley together bringing purpose, defendant and for plaintiff. they should find for Instruction 3 was to the purchaser’s if the effect that attention was called to the through instrumentality farm whether directly indirectly, page J., etc. Trimble, said, at 971: merely sufficient for act to be “It is not one procuring causes; in a chain of he must links be the [Citing The instructions above eases.] cause. set forth TERM, 1925. OCTOBER *18 Oil Co. v. Mo-La much, present rule allows very the than latitude a wider to permit broker approved, would and, were only re- he recover was on a sale which commission pro- or motely induced not was but which connected, by cured his efforts.” Miles, v.
The same announced in Crain rule is App. Mo. App. Field, Dillard v. 338, 134 52; Mo. S. W. 206, 153 S. 532.W. Corpus “In order
In 9 said: it is Juris, 614, compensation the on may [the broker] he be entitled parties, it is not the consummation between prop- enough merely put track on the the customer put erty the principal toor sell, which the wishes possible he principal customer, but of a track together, parties un- bringing must be the the means of complete principal transaction the less the refuses by arranged it is But after the broker. the terms are bring necessary into the the customer that he should presence principal personally them; introduce the or parties through are efforts the it is sufficient that whereby brought other, into communication each agreement. together brought in an their minds are brought together as a result the are Where exchange-results, and a lease or sale, efforts, broker’s although he commission] to a broker becomes entitled following negotiations present during the intro- is not part or takes no therein.” duction by respond- objection made have set out the
We to conceive how these instructions. It is difficult ent to clearly more submitted issue have been could giving jury. instructions. There no error these Respondent assigns III. in the of In error refusal 3-D “The court instructs reads: struction which jury that under the evidence this case u -, ,. , . „ . . Abandonment. plaintiff any you cannot commission allow transaction mentioned evidence of the matter tract affecting hundred-acre four defendant Company.” COURT OF SUPREME it admits evidence; This a demurrer truth and all rea- of the evidence adduced might jury sonable draw therefrom. inferences agency four Plaintiff’s contract of sale of questioned. established hundred acres is not letter August evidence. Did all the proximately directly from sale result negotiations'? appears If it from the evidence that the negotiations dropped and thereafter instruction intervened and induced the then the sale, given; should not. have been it should otherwise, Benninger’s testimony prop- jury From could erly pleased find that with the terms of- *19 by Yining fered hundred so much acres, four so go Benninger that deal; he induced into the indeed, gave go manage- him of in the $40,000 a bonus and take property; negotiations ment Yining the that the of between Kaempff Benninger were broken off and procuring bringing was not the cause of the into agreement. Dyas Realty App. [Coffman v. 176 Mo. Co., (1), 842.] 692 The 159 S. fact that W. defendant se- plaintiff cretly the closed deal concealed it from does recover; right [Weidemeyer not affect v. App. Woodrum, 716, 168 Mo. 9 894; S. W. C. J. 619.] say
Respondent’s in any counsel their “In brief: question event, under the evidence the whether or not the on four hundred-acre tract was the re plaintiff sult of the efforts of should have been submit jury. requested ted This to the defendant in Instruc tions 6-D and 17-D.” The facts in Donaldson Bond & 213 Mo. Houck, Stock Co. c. l. W. v. S. 242, are applied in the instant unlike those case and the rule in inapplicable that case is here. In the Houck case, page early negotiations “The court at 441: said, in which plaintiff part nothing took some came to- and were aban purposes. testimony intents doned to all The shows plaintiff nothing knew formation last OCTOBER TERM, syndicate. purchasing- present impas- These facts an way recovery.” in obstacle sable only case there corporation, instant was one In.the Ajax Company. Producing assignments The represented Kaempff. to-, executed February stipulated: In contract of it was “Said conveyances parties may in shall blank and second fill proposed corporation grantee name of the said conveyances delivery pursuant on to the said terms of question However, the contract.” of the interven- jury tion was submitted in to the Instruc- 11-D; tion that if went Louisiana and after inspecting property was dissatisfied therewith and upon negotiations entered new which took part bearing no and which resulted in the contracts date February 9, 1920, then the is not entitled to pertaining a° recover commission on transaction jury four tract. The verdict of hundred-acre under other like instructions this eliminates from negotiations the case claim that the were broken off and the deal effected intervention of another party. refusing not err The did court Instruction 3-D. Respondent assigns
IY.
refusal of
(error
its
jury
agreed
Instruction
plaintiff
13-D, find it was to receive
commission
$5,000 on ac
*20
twenty-acre
of
sale of the
count
the
tract for $45,000
plain
ancl
same was to be
to the
the
Bata
Pro
payments.
pro
purchase
tiff
rata as
installments
said
price
by
were received
the defendant,
then
any
plaintiff
you cannot
amount or
to the
allow
sum
upon
though you
a
commission
sale
even
tract,
may
evidence
find from the
the
was an
procuring cause
of the execution
efficient
of the con
whereby Igou
Kaempff
right
obtained the
tracts
twenty-acre
purchase said
tract. The Mo-La Oil Com
knowledge
plaintiff,
pany,
without
or consent of
voluntarily
canceled
first and second contracts and
purchasers.
then
Plaintiff was
released
entitled
OP MISSOURI,
SUPREME COURT
v. Mo-La
Co.
agreed
pro
even
he had
commission,
Ms
to take it
rata
payments.
[Nesbitt
ont
Helser,
v.
There are or two other which are opinion are merit. without We the learned sustaining trial court erred motions new trial judgment is, therefore, in arrest. The reversed and cause with directions remanded, reinstate the judgment. Bailey, sitting. G., not verdict and foregoing opinion IIigbee, PER CURIAM: The adopted opinion isC., as the All of court. concur, judges