*1 CORPORATION, WEWOKA PETROLEUM corporation; Carl a dissolved Oklahoma Baker, Strang Stolle, John M. G. H. Pe Wewoka the assets successors Corporation, Oklaho dissolved troleum Error, Plaintiffs ma GILMORE, Error. V. Defendant
Charles
No. 37517.
Supreme Oklahoma. Court of
Oct. 1957.
Rehearing Nov. 1957. Denied
Application Petition to File Second for Leave Rehearing 1957. Denied Dec.
Johnson, Cotter, Gordon & D. Ted Foster, Jr., City, plaintiffs Oklahoma error.
Savage, Gibson, Shelton, Benefield & City, for Oklahoma defendant in error. PER CURIAM. initially
This action was
instituted
comprised
the individuals who
a com-
mittee of stockholders as successors to the.
assets of the
Corpora-
Wewoka Petroleum
tion, which assets had been transferred to
them to
effectuate a distribution
dis-
corporation. Henceforth,
solution of the
parties
designated
will be
according to
their status in the trial court:
the defend-
error,
ant
plaintiff;
the Wewoka
Corporation,
Petroleum
a dissolved Okla-
corporation;
homa
as the
ducing
gas
oil
comprising
proceeds
leases and the
defendants
individual
purchased
.
.
operator
oil
there-
committee,
from the
as defendants.
of;
employed by
commenced, there
After
action
corporation prior to
to sell
its dissolution
*3
citizenship between
being diversity of
the leases and
he
pursuant
that
thereto
defendants,
plaintiff
caus-
defendants
procured
purchaser
leases
a
the
to whom
federal
to the
ed
case to
removed
the
be
sold;
plaintiff’s
were
not
that
fee was
to
objected
court.
the defendants
There
agreed upon
purchase
but .that
of the
5'%.
the cor-
plaintiff
the
make
failure of
to
price
$150,000
is
com-
a reasonable
motion
poration
Their
party defendant.
a
;
pur-
mission
corporation
the
that
and the
upon
to
the court
dismiss was sustained
chaser executed a
and enforceable
valid
corporation
the
theory that the
defendants’
contract of
fee
plaintiff’s
sale
pertinent
indispensable party.
was
The
an
due,
became
but
re-
payment
that
has been
portion
as
court’s order is
follows:
of the
demand;
process
fused
in the
that
“
**
of the
after consideration
dissolution of
corporation plaintiff’s
opinion
briefs,
is
the Court
of the
paid
given
debt was not
was
and he
be
good
is
and should
the motion
that
dissolution;
notice of such
that he did
the brief filed herein
sustained.
In
learn
approximately
of the dissolution until
plaintiff, plaintiff
behalf of the
four months
was
afterwards. This action
quests that,
event the motion
in the
shortly
plaintiff
filed
after
first
alleged he
an
sustained,
file
he be allowed to
knowledge of
had
de-
dissolution. The
complaint making the We-
amended
answer
fendant’s
status as
concedes their
party
Corporation a
Petroleum
woka
a committee
stockholders and successors
opin-
court is of the
defendant. The
corporate assets,
to the
generally denies
request should
plaintiff’s
ion that
plaintiff’s allegations,
Fed-
asserts that the
mak-
of the
granted, and the effect
be
them,
eral
dismissal
final
to
Court
was
as
Cor-
Petroleum
ing of the Wewoka
unliquidated
and that
the claim is an
de-
poration
party
a
will
determined
has not
judg-
mand which
been reduced to
complaint
is filed
amended
after
corporation
against
necessary
ment
as a
Corpora-
Petroleum
Wewoka
prerequisite
an
defend-
action
party
tion is a
defendant.
corporation pleaded
general
ants. The
that
“It
is therefore ordered
n
incorporation
denial and admitted its
to Dismiss be
defendants’ Motion
.alleged,
dissolution
contract
denied a
the same is sustained.
plaintiff,
with’
of a
admitted the execution
plaintiff
further ordered that
“It
of sale of
leases with the
contract
days
file
fifteen
in which to
allowed
alleged,
purchaser as
alleged
but further
complaint making the’We-
amended
an
that
contract was
never consummated
Corporation
party
Petroleum
woka
because of a defect
its title known to
pleaded
defendant.”
plaintiff
plaintiff.
It also
that
estopped
claim a
fee on the contract
corporation
party
de-
The
made
corpo-
certain
letters sent to the
virtue
thereafter, diversity
longer
no
fendant and
by him, and that
claim is
ration
his
barred
existing,
the case
remanded to
presented prior
to its
because
dissolu-
originated.
in which it had
court
state
tion.
petition alleges
plaintiff’s amended
The
that,
has
corporation
sufficiently
been dissolved vol-
evidence
discloses
that
The
preliminary
negotiations,
all its assets transferred to
after
untarily
n
to. sell
to distribute to holders of was authorized
the leases for the
the defendants
corporation
corporation;
agreement
thereafter
that
there was no
*4
Ligón with
which
leave to
&
obligation
amend.
Barron Holt
consisting of some
See
zoff,
Procedure,
for
filed
Federal
Ch.
an instrument
Practice
asserting by
was
7,
record;
This,
think,
purport
due
Sec. 444.
obligation
we
is the
asserted
that the
or two
required
drilling
upon
of one
Ligón
order
now
which defendants
leases;
corporation
urge
Contrary
that
that the
wells on the
action terminated.
com-
purchaser’s
argument
refusal to
that
was manda
acceded to
dismissal
immediately,
tory,
action,
in
ply
contract and
a removed
was the
with the
remand
proper
plaintiff,
leases
diversity
destroyed.
sold the
order
notifying
without
when
was
Ligón,
Mr.
original grantor,
Werblow, D.C.,
F.Supp.
to its
Donaldson v.
140
244;
D.C.,
price
Stores, Inc.,
in the
Safeway
same
as that contained
Clark v.
contract;
paid
F.Supp.
was
117
that no commission
583. This
un
situation
cor-
plaintiff;
Corporation
afterwards the
like
shortly
State ex rel.
Oil
that
Merritt
trans-
poration voluntarily
dissolved
District Court
District
Sixth Judicial
complete
defendants to
ferred its assets to
County, Wyo.
and for
in
Converse
44
trial
liquidation. Pending the action the
its
568, 572,
13 P.2d
in which that court re
the oil-runs
Ligón and
court restrained
deny
jurisdiction
fused to
the state court’s
funds held
disposing of the
from
juris
upon
after
alleged
remand
lack
defendants.
by
of the
them to the credit
diction in the federal court to make the
corpora-
plaintiff, the
judgment for
After
order. The rationale of that decision
supersedeas
executed
tion and defendants
expressed
following quotation
be
bond;
court,
stipulation and
opinion:
from the
thereupon dissolved
request
parties,
of the
“ * * * What the federal court
im-
released the
restraining
order
bar,
in the
did
case at
after it
We will dis-
pounded
to defendants.
funds
moved,
pursuant
jurisdic-
to its
assignments of error
cuss the various
Bogart
Co.,
tion.
v. Southern Pac.
order
facts in the
any
pertinent
further
U.S.
33 S.Ct.
Defendants to an instrument of some nature Ligón contract sale on the for a commission prior instituting for record to filed that dealt with an obliga claim his while Rose corporation. due him from the a commission on the tion was for The action recovery not precluding instrument was introduced in evidence Ligón, thus sale to necessarily and the nature of the claim was claim. We do never Rose on the explained by testimony. interpretation clearly defendants’ agree with so, Ligón an but, obligation seems that claimed letters; even elements these development further of some sort lacking. arising clearly There estoppel are an action, to the original leases ants out of his sale he assured by corporation. corporation’s is conclusive president The evidence that the sale corporation’s contract of sale to tract adequately that the obligation covered its royalty Ligón. provided for the override re- knowledge Unless the broker has provided Ligón for the by tained and also the defect in procure title and fails to purchaser drilling on the willing of two additional wells property to accept the defect, leases. The defendant who executed to the the rule contended corporation president as the testi- for by contract application. defendants has no opinion fied that he was of Under the case, circumstances of this adequately Ligón applicable sale contract rule satisfied has been stated in Yoder satisfy addition, attempt Randol, claim. an 537, L.R.A., In 16 Okl. 83 P. N.S., 576, Rose, Ligón Mr. two letters from Mr. as follows: were also felt secured which defendant fully perform- “Where a broker has objection. should These obviate the title ed his undertaking by producing a letters likewise not introduced in evi- were person ready, willing, pur- and able to Thus we dence or their contents disclosed. employer’s chase his property at the presented with the situation of price stipulated, the terms solely pay agent’s fusal to commission accepted and the landowner has on the basis a failure of consummation procured so and entered in- alleged of the sale reason of contract binding to a and enforceable contract may not title defect which or have him, with the broker is entitled his sufficient, been so far the evidence re- commission, his right thereto veals, contract unenforceable to render the pur- defeated the fact that the corporation’s abroga- consent its chaser refuses to consummate the justifiable plaintiff, tion as to with the transaction because of a defect in the agent further claim knew of the landowner’s property, title to the alleged offering property when defect where knowledge such defect was for sale. employer communicated *7 the broker at the time entering of into undoubtedly It is a the rule that broker employment the contract of with him.” a commission where entitled to he In the instant action the the failure of property the must be offered knows parties to consummate the sale is at pro- to certain defects of title and fails to broker, tributable to the to a of but default purchaser ready, willing, able duce corporation. the See also: Poston Bu v. purchase under those circumstances. 520, chanan, 539; 203 Okl. 223 P.2d Pfrim 225, Bowers, Monzingo 135 v. Okl. 275 P. Tidwell, mer v. 205 Okl. 236 P.2d here, regard But without to the suf- 339. 978; Barber, Nunn v. Okl. 249 ficiency the evidence to establish an ac- P.2d 999. corporation’s in defect title to tual leases, fails Finally, the evidence to show that the last two contentions disposed succinctly. of a knowledge may had defect in the was necessary join contained in terms which title not as defendants all the sale contract to executed. shareholders for the produced for action; Plaintiff officers as trustees defend the the terms stated him leases on and the defendants trustees for the corporation’s shareholders, he, president, always as defendants have obligations maintained, thought Ligón. all due likewise contained authorized to de objection after Rose noted his the beneficiaries. 12 Even fend for O.S.1951 § title, appears necessary was it prove was never 223. Neither compliance intangible statute, apprised the exact nature with claim tax by Ligón. Furthermore, first being for the sug asserted the defendants time herein, position in their brief for this trary gested to the taken the defend- was an main just as defendants unliquidated claim El throughout trial. Watts
tained 220.
more, P.2d Okl. in the defendant
Upon prayer herewith
error, judgment is entered corpora- Surety Company, Seaboard laws
tion, incorporated under surety appellants, York, New
State of bond. supersedeas their
on affirmed.
Judgment DAVISON, J., and
CORN, C. V. BLACKBIRD,
HALLEY, JOHNSON, CARLILE, concur. JJ.,
JACKSON WILLIAMS, J., J.,
WELCH, C. specifically as to part and
dissent in- proposition
determination statute, all other
tangible tax opinion. in the they
spects concur acknowledges the aid of
The Court prep- in the
Supreme Commissioners Court tenta- opinion. After a aration of written, cause there opinion
tive of this Court. assigned to Justice report consideration
Thereafter, upon opinion was foregoing conference,
adopted by the Court. *8 Corpo- COMPANY, A MATERIALS
CURRY Oklahoma, Antlers, ration, Plaintiff Error, COMMISSION, TAX
OKLAHOMA in Error. Defendant
No. 37704.
Supreme Court Oklahoma.
Dec. 1957. notes commission; liquidation of their amount of as to the his to the stockholders that stock; defendants, Rose, purchaser, capital procured that the share- a Mr. he with committee, pro- corporation own an interest executed a holders’ whom contract $150,000; that made on the motion to dismiss for lack of of sale of the leases indispensable party. provided that seems be no expressly an sale contract of provisional more than a alternative order drill two additional would complied an with which the wells, were that the leases Ligón complaint. amendment his in a Mr. Under royalty interest override purchased federal corporation pleadings had rules leave to amend from whom the freely granted; regard would and in that leases, problem, commission; it has that where Mr. been noted pay plaintiff’s appears objection may that the be obviat ultimately consummate refused to by amendment, ed defect court dismiss alleged title of an tract because
Notes
notes rule Porter v. 116 Okl. 243 stockholders, due paid, be and that all rely, P. defendants are assets then remaining amply on hand be dis- more than satisfied the circum- following tributed quote again committee of stances of this case. To from any absolutely showing, no there Law of Cor- Fletcher, Cyclopedia change position by taken in defendants porations, supra: interpretation of the let- reliance on their continue the statutes “Where thereby. they prejudiced ters or that were dis- corporation after aof existence Furthermore, involving cases cited settling its purpose of solution for doctrine of election of remedies not be- corporate property business, point. This is remedies election of fund, and a creditor —and a trust comes situation. demand one this includes whose a breach arises out of tingent and assignment error deals The next sue, obtain- without with the restraining court’s action trial contract — ”* * * claim, his judgment of ing disposition money defendants of the operator in the hands of oil the lease Co. v. So, too, Mining Coal in Boothton purchaser. However, proposition is Ala. this Ry. Co., Coal, & Tennessee Iron now said: moot this order has been dissolved 833, 837, it was where 60 So.2d “ ‘ the posting defendants of bond * * * of such reduction The pursuant stipulation parties. of the a condition judgment is claim to any irregularities regard Thus will equity’s to invoke right the creditor’s Little, Okl., considered. Davis v. trust, power administer P.2d wrong 666. If defendants have a statute-rec- the creditor in which ’ ” ' fully damage, they suffered have * * their beneficiary. ognized remedy. v. Ex- effect McWilliams To the same also It is insisted that can 884; Cir., Co., 298 F. Coal celsior