Manning v. Wood

253 P. 518, 120 Or. 672, 1927 Ore. LEXIS 38

• Court: Oregon Supreme Court
• Decided: January 27, 1927
• Status: Published

Opinion

BEAN, J.

It appears from the record that the defendant John H. Wood and H. H. Fisher each received and hold one hundred shares of fully paid-up stock of the Bear Creek Logging Company, of the par value of $100 per share, or a total of $20,000, one third of which is claimed by plaintiff.

The question involved is one of fact. There is a conflict of testimony. The plaintiff testifies in substance that he and the defendants Wood and Fisher agreed to undertake the flotation or projection of a timber deal and that each should receive one-third part of the profits of promoting such a scheme. Two or three projects were investigated and considered but nothing was realized from them. In May, 1923, the plaintiff and the defendants entered upon the undertaking of promoting what is called the Clackamas, or sometimes called the Dyer, timber tract, involving a large amount of timber. The timber was examined by Mr. Fisher, and a written option obtained, after negotiations had been pending for some time, the option being dated August 15, 1923. The plaintiff and the defendant worked together in regard to the proposition and at one time a sale was contemplated to Jones Lumber Company. This sale did not materialize. At the inception of the negotiations between the plaintiff and defendants, it was thoroughly understood that the defendants Wood and Fisher would have a working interest in the project; that they did not have the money or financial backing necessary to obtain an option for a large amount of property; for that reason they went to the plaintiff to get him to interest some capitalists or someone of means in the project. The plaintiff referred defendants to Mr. Daniel Kern, a substantial business man of considerable means.

After the matter of the sale to Jones Lumber Company was dropped, in order to organize a company or corporation to take over the project, it became necessary for additional capital to be obtained, and the plaintiff went to Mr. John Kieman and endeavored to get him interested. He was unable to do so but suggested that Mr. Kern could interest Mr. Kiernan and Mr. Kern afterwards got Mr. Kiernan interested in the project, and the corporation above mentioned was formed. The plaintiff and defendants seemed to work harmoniously together until a short time before the organization of the Bear Creek Logging Company. Much of the business was transacted in the law office of the plaintiff in Portland, the parties often consulting and planning until late at night. Then the defendants together with their associates went to another law office and the company was organized as above stated. A letter written by one of the defendants in behalf of the joint undertaking, about the 2d of June, 1923, explains the transaction to a certain extent. It was as follows:

“Portland, Oregon, June 2, 1923.

“Mr. A. F. Flegel,

“Portland, Oregon.

“Dear Sir:—

“In reply to your letter of the 21st May, requesting the names of the parties who are to be interested in the operating company which is to be formed in connection with the logging of timber in Township three, south, Ranges four, five and six East, Clackamas County, I beg to submit the following personnel:— which is to be held in strict confidence by yourself and representatives:

“Mr. Daniel Kern, who is now operating a mill of 250,000 capacity, and five sides of logging equipment.

“Mr. John Manning, who is Mr. Kern’s attorney, will also be interested in the company.

“Mr. J. H. Wood, a former contractor of this city, and myself.

“If a company formed by the above personnel is considered satisfactory, by you, as to experience and financial resources, it is understood that you are to immediately undertake to get the timber in question lined up, and secure for us an option of sufficient length to allow for the completion of a deal satisfactory to both the owners and the operating company.

“Tours truly,

“(Sgnd.) H. H. Fisher.”

The defendants Wood and Fisher deny that any contract was made with the plaintiff and deny that he was interested in the business, except as an attorney for Mr. Kern. The letter above copied corroborates the plaintiff in his testimony that he was interested in the project. The testimony of three witnesses, E. E. Harvey, James J. Murphy and E. E. Lovett, also corroborates the plaintiff to the extent that the defendants stated that he was interested with them.

It is plain from the testimony that the undertaking never would have been carried through except for the efforts of the plaintiff. He was instrumental in interesting Han Kern and through Dan Kern, John Kiernan was also interested in the scheme which was successfully carried out. The defendants, except for the flat denial of some of the facts, seemed to have understood that Mr. Manning should have been compensated, but suggested that he should be paid by Mr. Kern, a man that was in no way liable to the plaintiff. A recapitulation of the testimony would he of no benefit.

The Circuit Court, after a painstaking hearing, found for the plaintiff. We are firmly convinced that the finding and decree of the Circuit Court was right. It is affirmed. Affirmed.

Burnett, C. J., and Band and Brown, JJ., concur.