Anglo-Texas Oil Co. v. Manatt

• Decision Date: 12 October 1926
• Docket Number: Case Number: 16894
• Parties: ANGLO-TEXAS OIL CO. v. MANATT et al.
• Court: Oklahoma Supreme Court

1926 OK 810

256 P. 740

125 Okla. 92

ANGLO-TEXAS OIL CO. v. MANATT et al.

Case Number: 16894

Supreme Court of Oklahoma

Decided: October 12, 1926

Syllabus

¶0 1. Pleading--Issues and Proof -- Evidence not Constituting Variance.

The evidence in a case must correspond with the allegations of the pleadings, and be confined to that point, or points, in issue. Evidence complained of in the instant case does not constitute a variance or change of theory from that alleged.

2. Appeal and Error--Harmless Error--Admission of Evidence--Subsequent Withdrawal with Instruction to Jury to Disregard.

The error of admitting improper evidence over the objection of opposing counsel is cured by its subsequent withdrawal before the trial closes and by an instruction to the jury to disregard it, unless the evidence, thus admitted, is so impressive that in the opinion of the appellate court its effect is not removed from the minds of the jury by its subsequent withdrawal.

3. Evidence--Carbon Copy of Letter as primary Evidence.

A carbon impression of a letter written on a typewriter, made by the same stroke of the keys as the companion impression, is an "original." Either impression is primary evidence of the contents of the letter, and notice to produce the original mailed letter in order to introduce one of the retained copies in evidence is not necessary.

4. Appeal and Error--Questions of Fact--Conclusiveness of Verdict--Modification of Judgment as to Item of Recovery Unsupported by Evidence.

In an action to recover for personal and professional services, which is submitted to a jury upon proper instructions as to the law, applicable to the facts in the case, and where there is competent evidence reasonably tending to support the verdict, the same will not be disturbed by this court on appeal, but where there is no competent evidence to support one item upon which judgment is rendered, the judgment will be reduced and modified to this extent.

A. J. Biddison, Harry Campbell, R. W. Kellough, and R. Y. Stevenson for plaintiff in error.

Joe W. Simpson, Luther P. Lane, and Guy S. Manatt, for defendants in error.

MASON, J.

¶1 The defendants in error, hereafter referred to as plaintiffs, commenced this action against the plaintiff in error, hereinafter referred to as the defendant company, to recover the reasonable value of personal and professional services rendered for the defendant company at its special instance and request. Said services consisted of preparing and furnishing certain appraisal and depletion reports upon oil and gas properties of defendant and the rendering of other services with reference to said property between October 1, 1921, and June 12, 1922, by virtue of which it was alleged the defendant was indebted to plaintiffs for the reasonable value thereof in the sum of $ 5,960.53. An itemized statement was attached to the plaintiffs' petition.

¶2 The defendant filed answer consisting of a general denial and an admission that plaintiffs had been employed by the defendant to make certain depletion reports for federal income tax purposes upon their representation that they were specially capable and skilled in such work. Defendant further alleged that plaintiffs did not possess any special or professional skill, ability, or efficiency in making such reports, and that said services were wholly worthless and the defendant received no benefit from the work or efforts of plaintiffs.

¶3 Upon trial of the issues thus joined, the jury returned its verdict in favor of the plaintiffs for the full amount sued for, upon which the trial court rendered judgment. The defendant company has duly perfected its appeal to this court. The record discloses that said services were performed in New York City and several places in both Oklahoma and Arkansas, that the trial of the case in the lower court consumed some seven or eight days; that a large volume of documentary evidence was introduced, including long technical reports of various kinds and letters and communications between the parties.

¶4 The trial court, over the objection of the defendant, permitted the plaintiffs to introduce in evidence Exhibit No. 13, being a carbon copy of a letter mailed by the plaintiff, George L. Hess, to the president of the defendant company in which many things relating to the work of plaintiffs were discussed, and which contained the following:

"I shall charge your company the same price per day I have always charged in the past, viz., $ 100.00 per day, for each and every day I work for you, and you to pay my expenses in addition. I wish to have this understood so there can be no misunderstanding. However, I could safely assume that you understood this, but it will do no harm to have it definitely settled. Here as over in Oklahoma, you will be charged for each day's work done, and as I have always done over there the actual time I charge for will not be much over one-half the actual time. There are always many little things to be done, that take time to do but would have to add several of them together to make a day of it. If these terms do not meet your approval, I shall expect you to say so."

¶5 Thereafter, the court, over the objection of the defendant, permitted the plaintiff Hess to testify to a conversation he had with Mr. Johnson, who at that time was president of defendant company, as follows:

"Q. Mr. Hess, at any time after you had completed any portion of the work for the Anglo-Texas Oil Company, did you and any of the officers discuss the amount due you by reason of that work? * * *

"A. I did.

"Q. What officer of the company was it, please, sir?

"A. Loomis C. Johnson, president of the company.

"Q. Can you, please, sir, tell the jury about the date of that conversation?

"A. Yes, sir: it was on January 9, 1922.

"Q. I wish you would please tell the jury where that conversation took place?

"A. In Youree Hotel at Shreveport, Louisiana.

"Q. Now, then, just please tell the jury what Loomis C. Johnson stated at the time, if anything, with reference to the services? * * *

"A. I asked Johnson if he had received my letter of the 22d of December, and he said he had. I asked him if what I said in there about services and payment therefor was satisfactory, and he said, 'Yes, of course.' * * *

"A. I said, 'Do you know I am charging $ 100 a day and expenses while down here?' And he replied that he knew that, and wanted to know if I wasn't satisfied with it."

¶6 Counsel for plaintiff in error contend that the trial court committed reversible error in admitting said letter and said evidence, for the reason that plaintiff's suit was not brought on the theory of an agreed compensation, but to recover the reasonable value of such services.

¶7 The rule is well settled that plaintiff cannot allege one cause of action and prove another. If such variances were tolerated, the defendant, irrespective of how diligent he may be, could not so prepare his defense as to meet surprises. 13 Corpus Juris, 751; Newby v. Myers (Kan.) 44 Kan. 477, 24 P. 971; Kingman, P. & W. R. Co. v. Quinn (Kan.) 45 Kan. 477, 25 P. 1068; Chambers v. Van Wagner, 32 Okla. 774, 123 P. 1117; El Reno Wholesale Grocery Co. v. Keen, 93 Okla. 198, 220 P. 653.

¶8 An examination of the record, however, discloses that the plaintiffs were not attempting to change the theory of their case, and that the trial court limited said proof to recovery on a quantum meruit basis. Before the evidence complained of was admitted, the court made the following statement:

"Bear in mind it is only for the purpose, not of establishing any contract or agreement, but only in reference to being one of the circumstances showing the reasonableness of the service, and for that purpose alone it is being admitted."

¶9 It appears that the plaintiffs and the trial court both took the position that such evidence was admissible for the purpose of, and was limited to showing the defendant's opinion as to the value of the services which plaintiffs had performed. This is also borne out by the court's instructions to the jury wherein the jury was told not to consider whether or not there was any agreement as to what amount was to be paid for such services, but that the jury was to determine only what was a fair and reasonable compensation for such services. The same is also true of the portion of the letter above complained of.

¶10 In addition to that, however, the record discloses that said letter was not admitted at the time it was offered, although the court later made an order admitting it in evidence, but finally withdrew the same from the consideration of the jury. Under the general rule, the error in admitting evidence, though improper, is cured by the court withdrawing the same and instructing the jury not to consider it. The practice, however, of admitting improper evidence with the promise or expectation of subsequently directing the jury not to consider it, or controlling it by the charge, is not to be encouraged, as we are all aware of the frailties of the human mind, and we know that, while testimony may be ordered stricken by the court, the impression it makes cannot be obliterated from the minds of the jurors. And where the evidence thus admitted bears upon the vital issues in the case, and is so impressive that in the opinion of the appellate court its...