"A person secondarily liable on the instru- | third party and by third party to procured ment is discharged: • *(3) By the dis- purchaser, brokers cannot recover commission charge of a prior party, except when such dis- without showing that brokers' principal, after charge is had in bankruptcy proceedings; having actually sold land to procured pur*(5) by a release of the principal debt- chasers, fraudulently conveyed it to third paror, unless the holder's right of recourse against ty as a mere blind to deprive brokers of their the party secondarily liable is expressly re- commission. served." * [3, 4] It is contended that the judgment in the Boss case in his favor discharged him (the person primarily liable), and by virtue of clause 3, 10090, R. S. 1909, defendant is likewise discharged. Clause 3 of said statute is merely declaratory of the law theretofore existing, and the discharge therein mentioned does not mean a discharge by operation of law, but a discharge by some act or neglect of the creditor. Phillips v. Solomon, 42 Ga. 192; Post v. Losey, 111 Ind. 74, 84, 12 N. E. 121, 60 Am. Rep. 677; Guild v. Butler, 122 Mass. 498, 23 Am. Rep. 378; 8 C. J. 617. Defendant is not released by virtue of clause 5 of the statute, for it is apparent that the release under that section is like wise to be made by the creditor and not by operation of law. [5] However, it seems plain to us that there can be no recovery in this suit of attorney's fee and costs in the Boss case. The provision in the notes relating to the recovery of an attorney's fee confines the recovery to a "suit," that is, one suit, and the recovery is to be an "attorney's fee." Evidently the recovery of an attorney's fee is to be confined to the fee earned in the prosecution of the present suit, and not other suits, whether or not they be successfully prosecuted. Of course, there is no authority to tax in this case the court costs in the Boss case. [6] Something is said by plaintiff about the agreement of dismissal of defendant in the Boss case affecting the liability of this defendant for attorney's fee in that case. It is sufficient to say in reply to this contention that this is not a suit on that agreement, but a suit on the notes, and the point must be decided in view of the contents of the notes alone. 2. BROKERS 88(3)-FRAUD OF OWNER AFFECTING COMPENSATION JURY QUESTION. In brokers' action for commission against owner, who instead of selling land to procured purchaser had sold it to third party, who in turn sold it to such procured purchaser, evidence held insufficient to warrant submission to jury of question of whether owner fraudulently sold land to third party as blind to deprive brokers of commissions. IN PRESENCE OF PARTY. In brokers' action for commissions involving question of whether owner's sale to third party instead of to procured purchaser, who subsequently bought land from third party, was a blind for fraudulent purpose of depriving brokers of commission, statements of third party were not admissible to show fraud, where neither owner nor his agent was present at time statements were made. 4. BROKERS 53-PROCURING CAUSE OF SALE ELEMENT OF RIGHT TO COMMISSIONS. Before an agent is entitled to his commission, his endeavors must have been the procuring cause of the sale. 5. BROKERS 82(4)-RECOVERY IN ACTION FOR COMMISSION LIMITED BY CONTRACT PLEADED. Brokers suing for commission, having pleaded a contract, could not recover on another contract, entered into subsequently to that pleaded. 6. PLEADING 381(1) TRIAL 251(1)— VARIANCE IN EVIDENCE AND INSTRUCTIONS. Evidence and instructions should not be broader than the pleadings. 7. APPEAL AND ERROR 171(1)-THEORY OF CASE ADOPTED IN LOWER COURT CONTROLLING. Plaintiffs, having tried case in lower court on theory that new contract was entered into during conversation testified to, are bound by such theory and cannot claim, on appeal, that the conversation was merely language inter preting the contract pleaded. Appeal from Circuit Court, Adair County; James A. Cooley, Judge. "Not to be officially published.” Action by George Lorton and another against James Trail. Judgment for plaintiffs, and defendant appeals. Reversed and remanded. Higbee & Mills, of Kirksville, for appellant. Weatherby & Frank, of Kirksville, for respondents. (216 S.W.) BLAND, J. This is a suit for a real estate back for $3,200 to cover the balance of the commission. Defendant was the owner of purchase price. Harry Farr did not know 80 acres of farm land and 10 acres of timber defendant at the time he looked at the farm. land in Adair county, Mo. Defendant, being Plaintiffs never made any effort to sell the anxious to sell his land, employed plaintiffs land to Mills or Harry Farr. John C. Mills to find a buyer for his farm, and agreed with testified that at the time he sold the land to them that they should receive a cash com- Harry Farr he had not yet received a deed mission of $200 and the 10 acres of timber from defendant, and for convenience and land for their services. The next day one of the saving of expense he asked defendant to the plaintiffs showed the farm to one Alec convey the farm directly to Harry Farr, Farr, and shortly thereafter defendant and which defendant did on the 10th day of JanFarr were introduced to each other by one of uary, 1917. Thereafter Alec Farr, who had the plaintiffs in plaintiffs' office. Several con- sold his own place, and his wife moved on versations were had in plaintiffs' office be- the farm under an agreement to pay to Harry tween defendant and Farr in reference to the Farr rent therefor, which was paid. Alec sale of the farm. Shortly after the negotia- Farr and his wife were living upon the place tions had started defendant and Farr went to at the time of the trial of this case, which plaintiffs' office, and told one of them that was on February 7, 1919. The Farrs, Mills, Farr was very anxious to buy the farm, but and defendant denied that there was any colthat he wanted the 10 acres of timber land lusion in any of these transactions. along with the farm if he made the deal, and defendant asked plaintiffs at the time to release the 10 acres so that Farr could get it. This was agreed to by plaintiffs, and thereupon an understanding was had between plaintiffs and the defendant that if Farr or either of his sons purchased the farm, plaintiffs were to have $200 for their commission. This agreement was made for the reason that defendant told plaintiffs that Farr was try-manded their commission of defendant, and ing to beat plaintiffs out of their commission, and that, "You boys was selling the farm, and you will get your $200 regardless of which Farr gets it." Alec Farr was anxious to buy the farm, but his wife, who was to furnish a portion of the money, did not like it, as disclosed by defendant's evidence, and for this reason, according to defendant's evidence, Alec Farr did not buy the farm. All of the foregoing transactions occurred during the months of September and October, 1916. Defendant introduced evidence tending to show that in November, 1916, John C. Mills, hearing that defendant had a farm for sale, entered into a written contract for the sale of the farm and timber land to Mills for the sum of $7,000. On Thanksgiving Day Mills' son was hunting near the farm of Harry Farr, Alec Farr's son. Harry Farr testified that his farm was rough, and that he wanted a place to send his boys to school, and that Mills' son told him of his father's, John C. Mills' place, and that it was near a good school, and he asked Harry Farr to come and see his father in reference to it. Harry Farr afterwards looked at the place, and then went to see John C. Mills about buying it. A written contract was made between Mills and Harry Farr on December 9, 1916, where in the farm and timber land was sold to Harry Farr by Mills for the sum of $7,200. Harry Farr had no cash. He borrowed $400 of the purchase price from the bank, $1,200 of his father and $2,400 of his mother, for whch he gave notes, and gave a mortgage | The petition in the case alleges that defendant employed plaintiffs to sell the farm and timber lands, and to pay them for their services a commission of $200, provided that they should find or produce a man to whom defendant could sell his said lands, and that thereafter plaintiffs found and produced a man to whom the defendant thereafter sold his said farm lands; that plaintiffs had de defendant has refused to pay the same. The answer was a general denial. The jury found a verdict in favor of plaintiffs in the sum of $200, and defendant has appealed. [1] It is contended by the defendant that the evidence fails to prove the cause of action alleged, and among the reasons assigned for this contention is that there was no fraud proven. The undisputed evidence in this case shows that the land was not sold to Alec Farr or to one of his sons, but to John C. Mills; and, unless plaintiffs have shown some fraud practiced by the defendant, wherein defendant, after having actually sold the property to Alec Farr, or one of his sons, conveyed the land to Mills as a mere blind or form for the purpose of making it appear that the land was not so sold, so that plaintiffs could be deprived of their commission, then plaintiffs have failed to prove a case. There is no contention that plaintiffs attempted to sell the lands to Mills. Plaintiffs urge that the following facts developed in the evidence tend to show fraud; that defendant's original price for his farm land was $7,200, which price was quoted to Alec Farr; that the property was sold to Mills for $7,000, or $200 less than was demanded of Alec Farr; that Mills afterwards sold the farm for $7,200, the same price that defendant was demanding of Alec Farr; that Harry Farr had no money to buy defendant's farm, but borrowed the money, $3,600 of it, from his parents to pay most of that part of it which was to be paid in cash; that Alec Farr had sold his farm in another part of the county, and immediately moved upon defendant's farm after his son bought it; that although defendant's evidence shows that Harry Farr borrowed $1,200 of his father and gave a note therefor, his father did not list the same in his tax assessment, assigning as an excuse that he was not in possession of the note when the assessment was made; that Alec Farr stated in the presence of one Bragg that "it took good ones to beat him and John Mills," and "it takes a smart man to head off him and John C. Mills." [2, 3] We think that the evidence in this case fails to make out a case of fraud for the jury. At most it merely raises a suspicion of fraud. There is no evidence whatever of a substantial nature to show that the buying of the farm by Mills and the selling of the same to Harry Farr had any element of fraud connected with it. The evidence shows no ground for anything but a mere suspicion of bad faith in the transaction. It might be a suspicious circumstance that defendant conveyed the land to Mills for $200 less than he offered it to Farr, and that Harry Farr had no money, and was required to borrow the money, a portion of which came from his parents, to buy the place, and that Alec Farr and his wife moved upon the farm and occupied the same. Failure to list notes in tax assessment lists is unfortunately an extremely common occurrence. The statement of Alec Farr to Bragg that "it took good ones to beat him and John Mills," and "it takes a smart man to head off him and John C. Mills," was made by Alec Farr after the purchase of the land by Harry Farr, and at a time when Bragg was discussing with Alec Farr the matter of commission to plaintiffs. The evidence does not disclose in what way these remarks were made by Alec Farr, or in what connection they were made in reference to the commission, except that the commission was being discussed at the time the remarks were made, but how the matter came up and what was meant is not explained, but is left to conjecture. The statements were not made in the presence of defendant or his agent, and were not admissible had they been objected to. They are in evidence without objection. It is apparent from the circumstances that they are of little, if any, probative force, and, taken in connection with all the other facts, do not make out a case of fraud. The presumption of fair dealing cannot be overcome by such unsubstantial evidence. While the facts re lied upon by plaintiffs to show fraud may raise some suspicion that there was fraud actually committed, they are all perfectly consistent with honest dealing, and, standing alone, without any evidence of a substantial nature to show that fraud was actually committed, were not sufficient to authorize the submission of the case to the jury by the court, and the court should have sustained defendant's demurrer to the evidence at the close of all the evidence. Priest v. Way, 87 Mo. 16; Savings Bank v. Kingsburry Bros., 84 Mo. App. 82. [4-7] We think instruction No. 1 should not be given. Before an agent is entitled to his commission, his endeavors must have been the procuring cause of the sale. Instruction No. 2 does not have the jury find that Harry Farr or his father, through a fraudulent transaction, purchased the farm from the defendant, and that plaintiffs were the procuring cause of the sale. The instruction directs a verdict in the event the contract claimed by plaintiffs was made without requiring a finding of any other facts. Plaintiffs may not show under the petition that they were to get their commission whether the land was sold to Alec Farr or any of his sons. The conversation in which defendant told plaintiffs that they were to get their commission in case the farm was sold to Alec Farr or any of his sons might be construed as language interpreting the contract of employment, and not a new contract, and for that reason competent evidence to show that, under the contract first made, the partles considered that, should Alec Farr or any of his sons purchase the land under the circumstances existing, plaintiffs would be the procuring cause of the sale. However, plaintiffs did not try their case upon any such theory. Plaintiffs' instructions show that they treated the conversation wherein they were to get the commission if either Farr or any of his sons bought the land as a contract within itself. It is apparent that this is not the contract pleaded (Whitelock v. Beach, 174 Mo. App. 428, 160 S. W. 815; State ex rel. v. Ellison, 270 Mo. 645, 195 S. W. 722), and the evidence and instructions were broader than the pleadings, which is not allowed (Degonia v. St. Louis, I. M. & S. R. Co., 224 Mo. 564, 589, 123 S. W. 807). Plaintiffs have placed their 'construction upon the agreement, and are bound by the same. The judgment is reversed, and the cause remanded. All concur. (186 Ky. 7) (216 S. W.) CRIDER v. SUTHERLAND et al. (Court of Appeals of Kentucky. Oct. 14, 1919. Rehearing Denied Dec. 16, 1919.) no summons was ever executed on her husband, or on any other person for her, except on the plaintiff herself; that no guardian ad litem was ever appointed to make defense, nor did any guardian ad litem ever make any defense for her; and that by reason of these facts the judgment and the deed executed Attack on judgment is collateral where pursuant thereto were void and passed no tiplaintiff in ejectment replies that judgment re-tle to the defendants. In another paragraph, lied on by defendants as link in title was void for want of jurisdiction. 1. JUDGMENT 518 COLLATERAL ATTACK. WHAT CONSTITUTES 2. JUDGMENT ~497(1)—To warrant COLLATERAL ATTACK, WANT OF JURISDICTION MUST APPEAR ON RECORD. To warrant collateral attack on judgment of a court of general jurisdiction, want of jurisdiction must appear on the record; and this in case of judgments against infants or lunatics, as well as those against adults of sound mind. 3. JUDGMENT 949(2)—PLEADING COLLATERALLY ATTACKING JUDGMENT MUST ALLEGE WANT OF JURISDICTION SHOWN BY RECORD. A pleading collaterally attacking a judgment of a court of general jurisdiction is insufficient if merely alleging absence of a jurisdictional fact; it must allege that the record affirmatively shows such absence. she alleged that the deeds, through which the defendants claimed title, were obtained by fraud. The defendants demurred to the reply, and the demurrer was sustained, and judgment rendered in favor of defendants. Plaintiff appeals. [1] This being an action in ejectment, and defendants having relied on the judgment in question as constituting a link in their chain of title, and plaintiff having replied that the judgment was void for want of jurisdiction, the attack on the judgment was collateral and not direct. Dennis v. Alves, 132 Ky. 345, 113 S. W., 483; Id., 117 S. W. 287. [2, 3] Judgments rendered in a court of general jurisdiction cannot be collaterally attacked unless the want of jurisdiction appears on the record, and this rule applies to infants and lunatics as well as to adults and 4. PLEADING 8(15)-DEEDS OBTAINED BY persons of sound mind. Furthermore, a FRAUD CONCLUSION OF LAW. Pleading merely that deeds were obtained by fraud, without alleging the facts, is a conclusion of law, which is insufficient. 5. JUDGMENT 418-DIRECT ATTACK FOR AB pleading making such an attack is not sufficient, which merely alleges the absence of the jurisdictional fact; it must go further and allege that the record affirmatively shows the absence of such fact. Hence, a SENCE OF JURISDICTIONAL FACT NOT APPEAR- pleading such as the reply in this case, ING IN RECORD. Where absence of jurisdictional fact rendering judgment void does not appear in the record of the suit in which it was rendered, proper remedy is suit to set aside the judgment, or resort to other form of direct attack; it being enough to allege and show such absence. Appeal from Circuit Court, Graves County. Webb & Weaks, of Mayfield, for appellant. which did not allege what the record showed on the question but relied solely on facts outside of the record to show a want of jurisdiction, was not sufficient. Ratliff v. Childers, 178 Ky. 102, 198 S. W. 718; Anderson's Committee v. Anderson's Adm'r, 161 Ky. 18, 170 S. W. 213, L. R. A. 1915C, 581; Bamberger v. Green, 146 Ky. 258, 142 S. W. 384; Dennis v. Alves, supra; Segal v. Reisert, 128 Ky. 117, 107 S. W. 747, 32 Ky. Law Rep. 901; Maysville & Big Sandy R. Co. v. Ball, 108 Ky. 241, 56 S. W. 188, 21 Ky. Law Rep. 1693. leged. [4] Nor was that paragraph of the reply sufficient which alleged merely that certain deeds were obtained by fraud. This allegaCLAY, C. Nannie Crider brought this tion was but a conclusion of law. The facts suit against T. J. Sutherland and others to constituting the fraud should have been alrecover a small tract of land situated in Graves county. The defendants pleaded in substance that they acquired plaintiff's title to the property by a commissioner's deed executed pursuant to a judgment rendered against her. Plaintiff replied that she had been adjudged and was of unsound mind at the time of the rendition of the judgment against her; that at said time she had no committee, nor father, nor guardian, but was a married woman and had a husband; that] [5] Where the absence of the jurisdictional fact does not affirmatively appear in the record in which the judgment was rendered, the proper remedy is to bring a suit for the purpose of setting aside the judgment, or to resort to other forms of direct attack. Sublett v. Gardner, 144 Ky. 190, 137 S. W. 864. In such a case it is only necessary to allege and show the absence of the jurisdictional fact. Judgment affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (185 Ky. 351) LEFFINGWELL et al. v. EVANS. EVANS v. CORNETT. (Court of Appeals of Kentucky. Oct. 14, 1919. Rehearing Denied Dec. 19, 1919.) 1. CORPORATIONS 66-INCREASE OF CAPITAL STOCK ON FAILURE TO COMPLY WITH STATUTE VOID. Dysard & Caldwell, of Ashland, H. M. Collins, of Frankfort, and Clay & Hoggs, of Morehead, for appellants. B. S. Wilson, of Ashland, and C. W. Goodpaster, of Owingsville, for appellees. SAMPSON, J. The Leon Stave Company was a corporation, organized under the laws of this commonwealth on October 11, 1901, with a capital of $12,000, divided into 120 shares, of the par value of $100 each. By its articles of incorporation it was to begin business on Monday, October 21, 1901, and to continue for a period of 10 years. Its business was to be conducted by a board of three di Where the whole authorized capital stock of a corporation had been issued, and was then outstanding and held by its officers, an issue of additional shares without compliance with Ky. St. § 553, requiring the signing of the minutes on the books, the vote, or consent of the stock-rectors. In January, 1910, some one suggestholders representing two-thirds of the capital stock after notice of proposed increase, etc., was void. 2. CORPORATIONS 108-HOLDER OF STOCK WRONGFULLY ISSUED MAY SUE CORPORATION OR OFFICERS. Shares of corporate stock are choses in action, and one who receives and transfers them in good faith warrants only his own title, and not the legality of their issue, and the holder in good faith, whether immediate or remote, may maintain an action against the corporation or its officers for damages sustained by the wrongful issuance of the stock, but cannot recover from his bona fide transferor. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Chose in Action.] 3. CORPORATIONS 108-DAMAGES RECOVERABLE BY PURCHASER OF UNLAWFULLY 18 ed that the corporation increase its capital stock from $12,000 to $13,000, and issue the $1,000 increase in capital stock to Drew Evans, who was foreman at the mills, then located in Rowan county. Accordingly a note or minute was made on the books of the company, which reads as follows: "We also have increased our capital stock from twelve thousand to thirteen thousand. We issue the one thousand increase to Drew Evans, our head man on the grounds." Before Some time that year a certificate for 10 shares of stock was issued by the Leon Stave Company to Drew Evans, for which Evans paid the company $1,000 in cash. that time Evans was not a stockholder or an officer of the company, but he was foreman at the mills or yards. Evans continued to manage the mills and to hold the pretended stock for about two years, and until December, 1911, when he sold same to Cornett The amount of recovery against a corpo- for the sum of $1,000, and Cornett supersedration or its officers by a bona fide purchaser ed Evans as foreman at the mills. For of corporate stock, void because an overissue, some months after Cornett purchased the will depend upon the amount plaintiff had re-stock, the mill continued to operate, although ceived in dividends or from other sources as the result of his purchasing the stock and upon the value of stock in the corporation at the time of purchase. SUED STOCK. the corporation had expired by the terms of its charter at the time Cornett purchased the stock from Evans. When the corporation began to wind up its business, and it became apparent that there would be no assets, and that the stockholders would receive nothing, Cornett brought an action against Evans to recover the $1,000 which he had paid for the stock in the company, alleging that Evans had fraudulently misrepresented the value of the stock and the assets of the company, and that Cornett had been deceived and misled by such statements, and induced thereby to purchase the stock. Issue was joined and evidence taken. While taking the deposition of one of the officers of the corporation, it developed that the corporation had a capital stock of only $12,000, instead of $13,000, that its capital stock was never increased, and that the $1,000 worth of stock issued to Evans and transferred by Evans to Cornett was in fact never authorized, the company not having complied with section 553, Kentucky Statutes, |