Billingsley v. Parmenter

• Decision Date: 23 November 1937
• Docket Number: Case Number: 27486
• Citation: 73 P.2d 869,1937 OK 674,181 Okla. 315
• Parties: BILLINGSLEY v. PARMENTER et al.
• Court: Oklahoma Supreme Court

1937 OK 674

73 P.2d 869

181 Okla. 315

BILLINGSLEY v. PARMENTER et al.

Case Number: 27486

Supreme Court of Oklahoma

Decided: November 23, 1937

Syllabus

¶0 1. OIL AND GAS - Joint Adventures - Mere Agreement to Purchase Interest in Lease Upon Completion of Well Held not to Make One a Mining Partner or Joint Adventurer With Owner of Lease.

One who agrees to purchase an undivided interest in an oil and gas mining lease upon completion of a well to be drilled thereon does not, merely by reason of such agreement, become a mining partner or joint adventurer with the owner of said lease.

2. SAME - Essentials of Mining Partnership or Joint Adventure.

A mining partnership or joint adventure cannot exist unless there is a co-operation among the parties in the development of a lease for oil and gas, each agreeing to pay his part of the expense, and to share in the profits land losses.

3. SAME - Evidence Held Insufficient to Establish Estoppel to Deny Existence of Mining Partnership or Joint Adventure.

Evidence examined. Held, insufficient to establish estoppel to deny existence of mining partnership or joint venture.

Appeal from District Court, Hughes County; H.H. Edwards, Judge.

Action by C.L. Billingsley against R.A. Holland and others for appointment of receiver for oil and gas mining lease. Ridgment for Holland and others against plaintiff foreclosing liens, and plaintiff has appealed. Affirmed in part and reversed in part.

Billingsley & Kennerly, for plaintiff in error.

Pryor & Sandlin, for defendants in error.

GIBSON, J.

¶1 This action involves the foreclosure of laborers' liens upon an oil gas mining lease, and particularly the question of the propriety of personal judgment against the owner of an undivided interest therein.

¶2 The plaintiff in error, C.L. Billingsley, the owner of an undivided one-third Interest in said lease, commenced the action in the district court of Hughes county against the defendants, in error R.A. Holland, R.W. Parmenter, and F.O. Freeman for the appointment of a receiver to take charge of the operations on said lease. Holland filed his answer and cross-petition seeking foreclosure of a laborer's lien for work performed in the drilling of a well on the premises under the terms of an oral agreement with Parmenter and Freeman, Partners, and then full owners of the lease, and allegedly joined in and assented to by Billingsley at the time, or after, he acquired his interest from said copartners.

¶3 The defendants in error J.L. James and D.A. Streater, by separate petitions in intervention, seek foreclosure of liens for labor performed in the drilling of said well.

¶4 After trial of the issues joined on the lien foreclosure proceedings, judgment was rendered against Billingsley, Parmenter, and Freeman in favor of cross-petitioner and the interveners for the amount of their lien claims, interest, and attorney fees, and decreed foreclosure of said liens upon the oil and gas lease. Billingsley alone has appealed.

¶5 It is admitted that the cross-petitioner and the interveners were entitled to foreclosure of their liens upon the particular lease-hold here involved; but it is asserted that under the evidence they were not entitled to personal judgment against Billingsley for the amount of their respective claims.

¶6 The lien claimants contend that Billingsley was either a general partner or a mining partner of Parmenter and Freeman at the time the indebtedness was created, and therefore personally liable for said That is the paramount question for our determination on this appeal, and Me solution thereof depends entirely upon the evidence.

¶7 Although the present cause is one properly triable to a jury under the provisions of section 350, O. S. 1931, as an action for the recovery of money, it is one of equitable cognizance. Adwon v. Ketcham, 169 Okla. 428, 37 P.2d 432. A jury was called, but no general verdict as required by section 21, art. 7, Constitution, and section 370, O. S. 1931, was returned and none requested, and no objection taken to the failure of the court to so submit the cause, The issues were submitted upon special interrogatories alone, and the answers thereto were unfavorable to Billingsley on the question of partnership.

¶8 Under the foregoing circumstances, the conclusion is inevitable that the parties waived their right to a general verdict, and that the court called the jury to sit in a mere advisory capacity as to the facts in issue, and not for the purpose of returning a general verdict in the case. This was clearly within the powers of the trial court; and in such case the court may adopt or reject the conclusions of the jury. Gamel v. Hynds, 69 Okla. 204, 171 P. 920. The jury's findings in such case are merely advisory (Vose v. U.S. Cities Corp., 152 Okla. 295, 7 P.2d 132; Harris v. V. S. Cook Lbr. Co., 152 Okla. 7, 3 P.2d 694); and this applies as well in cases of equitable cognizance where the parties are entitled to a jury as a matter of right under section 350, supra, but waive the same. See Clark v. Ellison, 180 Okla. 630, 71 P.2d 609. In such case the answers of the jury are not binding upon the trial court nor are they binding upon this court on appeal. Id.

¶9 In such case our review of the evidence is governed by the equity rule and not by the rule applied in jury, or law, cases. Upon proper assignment questioning the sufficiency of the evidence, this court will examine and weigh the same, but will not disturb the judgment of the lower court unless it appears that said, judgment is against the clear weight of the evidence. Adwon v. Ketcham, supra.

¶10 In the year 1934 the aforesaid Parmenter and Freeman owned a block of oil and gas leases, in Hughes county. They employed the cross-petitioner Holland to drill 9 well for oil and gas upon the particular lease here involved. By letter to Parmenter and Freeman under date of September 24, 1934, Billingsley agreed to purchase from them a certain offset 40-acre lease for the sum of $500, to be paid upon completion of the well to a depth of 650 feet, or upon completion at a lesser depth in event oil or gas in paying quantities should be discovered. This letter was turned over to Holland by Parmenter and Freeman apparently as mere evidence of available funds for the payment of Holland's work to be performed on the well.

¶11 On January 14, 1935, when the well bad reached a depth of 585 feet, all parties apparently believed that a producing sand had been encountered. On that date Parmenter and Freeman were unable to pay Holland the Sum then due under his contract, and, according to Holland's testimony, Parmenter, in company with Holland, proceeded to Billingsley for financial aid, or to collect the money mentioned in Billingsley's letter above mentioned.

¶12 At that meeting, which took place at the bank in which Billingsley was an officer, Billingsley, according to the testimony of Holland, declined to pay the sum requested, assigning as his reason the inability of Parmenter and Freeman to deliver good title to the offset 40-acre lease. Thereupon Parmenter offered to substitute for said 40-acre lease an undivided one-third interest in the lease upon which the well was located and here involved. In response to this offer Billingsley remarked: "I would rather have it." Parmenter was then...