Anglo-Texas Oil Co. v. Manatt

• Decision Date: 12 October 1926
• Docket Number: 16894.
• Citation: 256 P. 740,125 Okla. 92,1926 OK 810
• Parties: ANGLO-TEXAS OIL CO. v. MANATT et al.
• Court: Oklahoma Supreme Court

256 P. 740

125 Okla. 92, 1926 OK 810

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

No. 16894.

Supreme Court of Oklahoma

October 12, 1926

Rehearing Denied Dec. 14, 1926.

Application to File Second Petition for Rehearing Denied June 7, 1927.

Syllabus by the Court.

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

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.

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.

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.

Appeal from District Court, Tulsa County; E. R. McNeill, Judge.

Action by Guy S. Manatt and George L. Hess, as partners, against the Anglo-Texas Oil Company, to recover for personal and professional services. From a judgment in favor of plaintiffs, the defendant appeals. Modified and affirmed.

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

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

MASON J.

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.

The defendant filed an answer consisting of a general denial and an admission that plaintiffs had been employed by the defendant to make cetain 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.

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.

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 contains the following:

"I shall charge your company the same price per day I have always charged in the past, viz., $100 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."

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, La.

Q. Now, then, just please tell the jury what Loomis C. Johnson stated at that 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."

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

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 Corp. Juris, 751; Newby v. Myers, 44 Kan. 477, 24 P. 971; Kingman, P. & W. R. Co. v. Quinn, 45 Kan. 477, 25 P. 1068; Chambers v. Van Wagner, 32 Okl. 774, 123 P. 1117; El Reno Wholesale Grocery Co. v. Keen, 93 Okl. 198, 220 P. 653.

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...