Burke v. King
| Decision Date | 24 March 1936 |
| Docket Number | Case Number: 25719 |
| Parties | BURKE v. KING |
| Court | Oklahoma Supreme Court |
¶0 1. FRAUD - Necessary Allegation and Proof of Fraud.
Fraud is never presumed, but must be affirmatively alleged and proved by the party who relies on it.
2. SAME - Cancellation of Instruments - Requisite Proof of Fraud for Cancellation of Contract.
Cancellation of an executed contract is the exertion of extraordinary power by a court of equity. This power should be only exercised in a clear case; never for an alleged fraud unless such fraud is clearly established, and never for alleged false representations unless the proof clearly establishes the falsity thereof and that complainant has been deceived and injured thereby.
3. SAME - TRIAL - Insufficiency of Plaintiff's Evidence to Withstand Demurrer.
Where the evidence of plaintiff, considered in its most favorable light together with all the inferences that can be properly drawn from it, is insufficient to establish actionable fraud or misrepresentation, a demurrer thereto should be sustained.
4. APPEAL AND ERROR - Review of Equity Case - Insufficiency of Evidence.
In purely equitable actions, this court will consider the whole record, weigh the evidence, and where the judgment is against the weight of the evidence render or cause to be rendered such judgment as should have been rendered.
Appeal from District Court, Wagoner County; E.A. Summers, Judge.
Action by Emmett King against J. P. Burke et al. for rescission of contract and cancellation of instruments. From a judgment in favor of the plaintiff, defendant named appeals. Reversed, with directions.
Coffey, Seaton & Coffey, for plaintiff in error.
Newton & Pinson, for defendant in error
¶1 This is an appeal from the district court of Wagoner county. The action was commenced by Emmett King, as plaintiff, against J.P. Burke and T.P. Luker, as defendants, for rescission of a sale and the cancellation of an assignment of an undivided one-sixteenth interest in certain oil and gas mining leases and other equitable relief. The parties will hereinafter be referred to, as they appeared in the trial court.
¶2 Plaintiff in his petition alleges that prior to August 4, 1933, he was the owner of an undivided one-sixteenth interest in certain oil and gas mining leases on 240 acres of land in Wagoner county, Okla.; that on August 3, 1933, while working on an oil lease near Sapulpa, he was approached by the defendant, who was seeking to purchase oil and gas mining leases or royalties; that plaintiff offered to sell his one-sixteenth in the lands in controversy for $100 provided a well had not been drilled in on the lands covered by said leases; that the defendant, after receiving said offer, went away, and returned the following day for the purpose of buying said interest of the plaintiff; that plaintiff inquired whether the defendant had called or knew anything about the leases, and on the statement of the defendant that he had not, and relying thereon, plaintiff sold and assigned his interest in said leases to the defendant; that such statement on the part of the defendant was false at the time it was made and was known to be false, and was relied upon by the plaintiff, and that if plaintiff had known the untruthfulness thereof he would not have made the sale. Plaintiff further alleged a tender of the purchase price which he had received from the defendant, and further alleged that the parties had each executed an assignment to C. M. G. Oil Company to the interest in said land, and that in consideration of said assignment 2,000 shares of stock in the aforesaid company had been issued and placed in the hands of the defendant T.P. Luker, as trustee, which stock was to be delivered to the party whom the court should determine was entitled thereto. And thereupon plainiff's petition concluded with the prayer for rescission of the contract of sale, cancellation of the assignment from the plaintiff to the defendant, and for other equitable relief. The defendant T.P. Luker's answer admits that he was trustee as stated in the plaintiff's petition and that he held the 2,000 shares of stock as therein recited and stood ready to deliver them to whomsoever the court should direct.
¶3 The defendant J.P. Burke, after a general denial, answered admitting the negotiation with the plaintiff August 3, 1933, and the purchase by him of the plaintiff's interest in the leases in controversy on August 4, 1933, and specifically denied the allegation of fraud and misrepresentation as charged by the plaintiff, and pleaded that while a well was drilled on the premises on August 5, 1933, the same was not completed as a producing well until the latter part of August, 1933, and that the premises were further explored and developed for oil and gas during the month of September, 1933, and that not until October 3, 1933, after the property had been fully proved as paying and producing property, did the plaintiff offer to rescind the contract and to restore the consideration which he had received for the assignment to the defendant, and that by reason thereof the plaintiff was guilty of laches and was estopped from asserting a recission of the contract of sale and the cancellation of said assignment, and prayed that the plaintiff take nothing by his petition. The reply of the plaintiff was a general denial.
¶4 Upon the issues thus framed, trial was had in equity. At the conclusion of plaintiff's evidence the defendant interposed a demurrer thereto, which demurrer was overruled and exceptions saved. Defendant thereupon introduced evidence to controvert the allegations of plaintiff's petition and in support of his answer. Upon the conclusion of the whole matter the court entered a decree in favor of the plaintiff. A motion for new trial was filed and overruled. The defendant J.P. Burke alone appeals to this court While the defendant assigns three specifications of error, as we view the record the only question presented is the action of the trial court in overruling defendant's demurrer to plaintiff's evidence. Under these circumstances we will treat as withdrawn all of the evidence favorable to the demurrant. Forry v. Brophy, 116 Okla. 99, 243 P. 503.
¶5 The evidence on behalf of plaintiff briefly disclosed the following situation: Plaintiff had lived some 30 years in the vicinity of the property in controversy; his occupation was that of an oil driller and he had been so engaged for about 20 years. He first met the defendant on August 3, 1933, at which time the plaintiff was working on an oil well some twelve miles from Sapulpa; that the defendant inquired whether the plaintiff knew of any leases or royalties for sale: that plaintiff first replied that he did not and then upon reflection advised the defendant that he owned a one-sixteenth interest in the leases in controversy and that there was a well being drilled thereon; that the defendant asked the plaintiff for a price on said property and was informed by plaintiff that the interest was worth $100 if the well had not been drilled in, and that the defendant then inquired whether plaintiff would sell for said sum, and was advised that he would: that the defendant thereupon stated that he would take the matter up with his company and be back the next day; that plaintiff never expected the defendant to return and gave the matter no more thought but, however, the defendant returned the next day and advised the plaintiff that he had came to purchase plaintiff's interest in said leases; that thereupon the plaintiff asked the defendant whether he had called Coweta or knew anything about the lease, and was informed by the defendant that he had not, and that thereupon the plaintiff sold the property to the defendant accepting half of the purchase price in cash and executing an order on certain parties to make an assignment to the defendant on payment of the balance of the purchase price; that the defendant took the order as directed paid over the balance of the purchase price in accordance with the agreement, procured the assignment and had the same recorded....
To continue reading
Request your trial