Black v. Donelson
| Decision Date | 13 July 1920 |
| Docket Number | 9778. |
| Parties | BLACK v. DONELSON. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Nov. 16, 1920.
Syllabus by the Court.
In an action seeking the cancellation of an interest in an oil and gas lease, and to recover the consideration paid for the interest assigned, alleging fraud on the part of the assignor, and where the answer only goes to a denial of the fraud alleged in the petition, and no denial as to the consideration, the action would be termed one of an equitable nature, and neither party would be entitled, as a matter of right, to a trial by jury.
A defendant's right is to have a cause of action prosecuted against him by the real party in interest, but his concern ends when a judgment for or against the nominal plaintiff would protect him from any action upon the same demand by another, and when, as against the nominal plaintiff, he may assert all defenses and counterclaims available to him, were the claim prosecuted by the real owner (quoting Words and Phrases, Second Series, Real Party in Interest).
Where the court commits error in excluding evidence upon direct examination of a witness, the error is cured when the evidence excluded is brought out on the cross-examination of the witness.
In an equity proceeding the Supreme Court will weigh the evidence but the judgment of the trial court will not be set aside where it is not clearly against the weight of the evidence.
Error from District Court, Okmulgee County; Ernest B. Hughes Judge.
Action by N. F. Donelson against E. R. Black. Judgment for plaintiff, and defendant brings error. Affirmed.
Kathryn Van Leuven, of Oklahoma City, and C. B. McCrory, of Okmulgee for plaintiff in error.
W. W. Wood and W. W. Witten, both of Okmulgee, for defendant in error.
The defendant in error, plaintiff below, instituted this action against plaintiff in error, defendant below, for the purpose of rescinding an assignment of an interest in an oil and gas lease, and to recover the sum of $1,250, the amount paid for the interest so assigned. The parties will hereafter be designated as they appeared in the lower court.
The following facts are deducible from the evidence: The defendant was the owner of an oil and gas mining lease on the northwest quarter of the southwest quarter of section 24, township 14 north, range 14 east. The plaintiff began negotiations with the defendant looking towards securing an interest in the lease. The defendant exhibited to the plaintiff a map, and designated the 40 acres as shown by the map to the plaintiff. Before the negotiations were closed, plaintiff and defendant went out to the vicinity of the property, and defendant there pointed out to the plaintiff 40 acres, claiming the same to be the 40 acres covered by the lease; but, instead of pointing out the 40 acres upon which the defendant had a lease, the 40 adjoining it on the north was pointed out, being the southeast quarter of the northwest quarter of the same section.
Immediately to the west of the property designated by the defendant and pointed out to the plaintiff there was a producing well. After viewing the premises, the plaintiff purchased a 9/16 interest in the lease owned by the defendant, and designated a spot on the 40 pointed out by the defendant where a well should be drilled. The purchase money, together with the assignment of the interest in the lease, were placed in escrow in the Bank of Commerce of Okmulgee, pending the drilling of a test well by the defendant, to and through the Booch sand, unless oil or gas was found in paying quantities at a lesser depth, and upon satisfactory proof of the completion of the well, the said Bank of Commerce was authorized and directed to deliver to the defendant the said sum of $1,250, and to deliver to the plaintiff the assignment of the lease. Immediately after closing the deal, the plaintiff returned to his home in Ft. Smith, Ark. Some time thereafter he was notified by the defendant that the drilling had about reached the Booch sand, and requested the plaintiff to come to Okmulgee. After reaching Okmulgee, plaintiff, in company with the defendant, went out to inspect the well, and then for the first time discovered that the same was being drilled, not on the 40 acres pointed out to him, but was being drilled on the 40 south of that, and then and there expressed his dissatisfaction. It is also shown that there were three other parties interested with him in the interest assigned; that the lease was made in his name with their consent; that when he discovered that the well was not being drilled upon the land pointed out to him, he complained to the defendant, and informed him that he had drilled the well in the wrong place, and not on the ground the defendant had pointed out to him. On the following day, which was Sunday, the plaintiff returned to Ft. Smith. Early Monday morning, there was a meeting of the plaintiff with the other parties interested in the interest assigned. At that time plaintiff reported the fact of the well being drilled on land different from that pointed out to him by the defendant, and plaintiff then telegraphed the bank not to deliver the money left in escrow. Plaintiff further testified that he did not know until about the middle of the week that the well proved to be a dry hole.
The evidence on the part of the defendant is to the effect that he pointed out to plaintiff the correct 40 and that when he and the plaintiff went out to see the well the plaintiff seemed to be perfectly satisfied; that at the time the drilling had almost reached the Booch sand, and plaintiff seemed to be enthused over the prospect of getting oil. The defendant further testified that when they went out to look at the well, the plaintiff said:
Defendant further testified that before they left the well they had all made up their minds that the well had been drilled through the sand, and that it was a dry hole. He further testified that Mr. Donelson said he thought it was a dry hole.
After hearing all the evidence in the case, the court found the issues in favor of the plaintiff, and decreed that the assignment of the interest in the lease be canceled, and that plaintiff recover of the defendant the sum of $1,086.37. Defendant appeals.
The grounds relied upon for reversal can be summarized under the following heads: First, that error was committed in overruling the defendant's demand for a jury; second, that the court erred in excluding certain evidence; and third, that the decree of the court was contrary to the evidence. The defendant contends that under section 4991, R. L. 1910, an issue of fact arose from the pleadings, and that therefore he was entitled to a trial by jury under section 4993, R. L. 1910.
In considering defendant's first ground of error, it is necessary to notice the nature of the action instituted by the plaintiff. If the action had been for the recovery alone of the consideration paid for the interest in the lease, then there would be some merit in this contention. It was necessary for the plaintiff, as a condition precedent to entitle him to a judgment for the consideration paid, that he establish the allegations of his petition, entitling him to the cancellation of the lease. The prayer for a money judgment could not be considered until the main contention of plaintiff that the defendant had imposed upon him in pointing out to him different land from that described in the lease, and that plaintiff had been deceived, had been established. The offset well was on the southwest of the northwest. The land which was shown to the plaintiff by the defendant was the southeast of the northwest. The land described in the lease was the northeast of the southwest. The plaintiff testified that he would not have paid this consideration for the interest in the lease, in fact, would not have bought at all, had he not been misled and deceived by the defendant in showing him the wrong land. If the plaintiff failed to establish this fact to the satisfaction of the court, and the court had found that the plaintiff was not misled, was not deceived, and should have upheld the lease, then the plaintiff would not have been entitled to recover judgment against the defendant for the consideration. That portion of the prayer for the recovery of the consideration was purely incidental.
This case is in many respects similar to an action brought to foreclose a mortgage. If the answer fails to deny the indebtedness, but only goes to the extent of attacking the mortgage, then and in that event the action would be of an equitable nature, and the facts would be for the court to decide, and neither party would be entitled to a jury.
In Holmes et al. v. Halstid et al., 76 Okl. 31, 183 P. 969, the court said:
To continue reading
Request your trial