Starr v. Slaney

SHINN, J.,

pro

tem.

Appeal from a judgment entered in favor of defendants after orders striking out plaintiff’s amended complaint and sustaining demurrers thereto.

By his amended complaint, which we will call the complaint, plaintiff alleged facts which may be summarized as follows: Defendant Lucille Barry, as executrix of the estate of Adelaida Bermudes de Barry, deceased, pursuant to an order of court authorizing the same, executed to one William J. Slaney, as lessee, a certain oil and gas lease upon real property. belonging to the estate. This lease, it is alleged, was taken by Slaney as agent of defendant as executrix. Thereafter Slaney, in consideration of $1500 paid to him, optioned the lease to one Lewis F. Marquis for a price of $23,500; Marquis assigned the option to plaintiff for a consideration of $2,500, notice of said assignment being given to the defendants; plaintiff thereafter paid'to said Slaney the sum of $1,000 for an extension of the option. Certain heirs objected to the lease and instituted proceedings to set aside the order authorizing the same, which proceedings were subsequently dismissed. Plaintiff within the option period tendered the purchase price of the lease of $23,500, which de

[313]

fendants

refused;

defendant Slaney, with the knowledge and consent of defendant Barry, sold and assigned the lease to a third party, which sale and assignment were confirmed and ratified by defendant Barry. It was also alleged that at the request of defendant Barry and upon her assurance that the lease would be assigned to him if he would do so, plaintiff employed counsel to assist in opposing the proceedings by which it was sought to set aside the lease, and in so doing incurred the expense of $1,000.

The complaint alleged and sought recovery of large damages, as the alleged value of the oil lease in question. Bach of the defendants Barry and Slaney demurred to the complaint upon general grounds and upon the further ground that there was a misjoinder of parties defendant in that each said defendant was improperly joined with the other. Motions were made to strike out various portions of the complaint upon the grounds that they were irrelevant, redundant, immaterial, sham and constituted evidentiary matter, and upon the same grounds the defendants moved to strike out the entire complaint. These motions were granted in their entirety and' the demurrers were sustained without leave to amend. Plaintiff appeals from the judgment which was entered in favor of defendants.