But the contract, referred to in said pleading and set out as an Exhibit thereto, shows that although Condor Petroleum Company did have the unrestricted power of management, control and operation of the leases, as stated in the contract, including the marketing of the product there-from, it derived none of such rights or powers from said other defendants. It posssessed all such rights and powers by virtue alone of being the lessee in the leases and by virtue of the terms of the leases being rights and powers derived from the lessors. The legal effect of its contract with plaintiff and the other defendants was to show that it never parted with or suffered any impairment or diminution of, such rights and powers in making the assignment of the interests constituting the subject matter of said contract. The other defendants in no true sense could entrust it with rights or confer rights or powers that they never had, and never acquired. The expression of mutual agreement, in the contract, that Condor Petroleum Company "its successors, assigns, or legal representatives shall have and is hereby given and granted by second party, its successors, assigns or legal representatives, exclusive charge, possession, control and supervision of all operations of every kind to be conducted on the said property for the development, production, treating, handling and marketing of oil, gas and other minerals therefrom as well as the payment of rentals, royalties, taxes and other charges which may arise and become due," etc., when read in the light of the undeniable fact that it at the time already possessed all such rights and powers and the clearly evinced purpose of the contract that it was not to part with any such rights or powers necessarily means no more than that the other parties *Page 385 recognized or assented to the retention of all such powers by Condor Petroleum Company and took their several interests wholly subject thereto. Among the rights and powers so retained by Condor Petroleum Company and subject to the continued existence of same in it, its successors, and assigns, was "the development of said properties * * * entirely at the discretion of first party." Another was that First Party "shall not be obligated in any manner herein to drill or operate the same, nor * * * be liable in any manner for failure to drill or operate any well or wells on said property." In short, the contract clearly shows that only working interests in the lease were assigned by the contract to plaintiff and said other defendants subject to every right and power of Condor Petroleum Company as though, in reference to the management and operation of the leases, it were and remained the sole owner of the leases. Said other defendants by the contract not only acquired no right to join in the operation of the leases, but expressly acknowledged that Condor Petroleum Company had the exclusive right to do so.
It is believed to be the rule that in passing upon the legal sufficiency of a pleading which refers to an attached exhibit the effect of the pleading is to be limited by and to the terms of the exhibit. So limited, plaintiff's pleading in this case, must, we think, be held not to show a mining partnership existing between Condor Petroleum Company on the one hand, and the plaintiff and said other defendants on the other.
It remains to consider whether in the absence of such relation between the parties, the petition was sufficient to state a cause of action by the test of a general demurrer. This question may even still further be narrowed to a consideration of whether such pleading alleged a cause of action in favor of plaintiff against Condor Petroleum Company, because it is certain, we think, that it did not allege a cause of action against the other defendants. If, however, it was sufficient as to Condor Petroleum Company, then it was error for the court to sustain a general demurrer, without limiting such action to said other defendants.
It is deemed necessary to consider the nature and terms of the contract which forms the basis of the suit as same are shown by the allegations, taking care to distinguish such allegations from those showing what was done under or as a result of such alleged contract.
The only allegations relating to the nature and terms of the contract were "* * * Condor Petroleum Company * * * employed plaintiff to procure an outlet or market for the oil produced from said leases and the plaintiff agreed to use his best efforts to bring about the building of a refinery near said properties * * * there was an express agreement between him and Condor Petroleum Company * * * for the employment of the plaintiff in said capacity to procure the building of said refinery, and the resulting sale of oil to it from the property of the defendants; but plaintiff alleges that there was no express agreement between said parties as to the amount of commission or compensation which he was to receive for his said services."
With only these averments as to the provisions of the contract there is manifestly considerable uncertainty as to what rights the contract created or what duties it imposed. In one place, plaintiff alleged he was employed "to procure an outlet or market for the oil produced from said leases", but in the same connection he averred his own undertaking to be that "plaintiff agreed to use his best efforts to bring about the building of a refinery near said properties." The question naturally suggests itself: Suppose plaintiff had fully performed this provision of the contract by using "his best efforts to bring about the building of a refinery" but such efforts had failed, what commission or compensation, if any, would he have been entitled to under the alleged contract? Did the contract provide that the obligation of Condor Petroleum Company to compensate plaintiff in any amount was wholly contingent upon the success of his best efforts? Upon that point the pleadings do not speak. These questions are further complicated by plaintiff's further allegation that "there was an express agreement between him and Condor Petroleum Company for the employment of the plaintiff [evidently referring to the same "employment" before mentioned] to procure the building of said refinery." Was the obligation imposed upon plaintiff by the contract the obligation "to use his best efforts to bring about the building of a refinery" as alleged in one place, or was it "to procure the building of said refinery" as alleged in *Page 386 another place? There would appear to be a material difference between the two obligations. Complete performance of one obligation could be just as complete non performance of the other, as a moment's reflection will show.
Employing familiar principles of construction, we think the allegation that plaintiff's employment was "to procure an outlet or market for the oil" must be regarded as general and therefore controlled by the more specific allegation that he was to use his best efforts to bring about the building of a refinery near said properties", or as otherwise also alleged, "to procure the building of such refinery." If so, the subject matter of the contract was not the employment of plaintiff to procure a sale of, or a market for, the oil produced from said properties, but it only had to do with the location of the refinery. The correctness of this conclusion is fortified by the clause following the portion of the contract last quoted and reading thus: "and the resulting sale of oil to it from the property of the defendants." This, although ambiguously stated as a term of the contract shows when taken in connection with what precedes it, that it was merely a statement of the contemplated result of the contract of employment. We, therefore, conclude that the subject matter of the employment, as the same is made known from the allegations of the petition, was either (1) "to procure the building of said refinery" or (2) "to use his best efforts to bring about the building of the refinery." In either case, it was no part of his employment to procure the sale of, or market for, the oil, but as already said that was only a contemplated result of the location and building of the refinery.
As a matter of law we think plaintiff was not entitled to recover a commission, or compensation in the nature of a commission, in any amount, for services in procuring the sale of oil or a market for the oil. The amount or value of oil that might, in the course of years, be sold to the refinery, once it was located in the vicinity of the leases, quite obviously could bear no relation to the value of the services of plaintiff in procuring the location and building of the refinery.
The pleadings claimed $28,321.18 as commissions, or compensation, upon the theory that plaintiff was due that amount for his services in procuring the sale of the oil, or in providing a market therefor. That amount was claimed although it was shown that the ownership of the refinery had changed. Our conclusion that no part of this was recoverable, poses the further question: What amount, if anything, did the allegations of plaintiff's petition show he was entitled to recover for his services in procuring the location and building of the refinery? The nature and extent of such services were alleged. It was also alleged as follows: "* * * plaintiff further alleges that if he is mistaken as to his allegation as to what his reasonable commission or compensation would be for the services performed by him, then he says in this connection that he has actually earned to date, the sum of $28,321.18 and he sues for said sum on a quantum meruit basis." Earned how, and for what? He had already alleged that he had earned that identical amount by way of commissions or compensation based upon the amount of oil sold and upon the theory that the services rendered under the contract included the procurement of a market for, or the sale of, said oil. The pleading, as we have concluded, showing no right to recover any such sum there is left no allegation to show an amount recoverable, which at the same time would show the jurisdiction of the court to entertain suit. Not only was there "no express agreement between said parties as to the amount of commission or compensation which he was to receive for his services" as plaintiff alleged, but there are no facts alleged from which can be implied a promise to pay any amount within the jurisdiction of the court for his services in regard to the location of the refinery. No amount for the recoverable service is stated. No facts showing the value of such services, exclusive of those for which he was not entitled to recover anything are alleged. Our conclusion is that said pleading by its allegations showed no right to recover any sum which can be said to be within the jurisdiction of the court. Hence, we conclude that notwithstanding the error in our former conclusions, the petition was nevertheless subject to general demurrer as held, and that the motion for rehearing should be overruled, which is accordingly so ordered. *Page 387