Carle v. Oklahoma Woolen Mills

• Decision Date: 15 February 1906
• Citation: 86 P. 66,16 Okla. 515,1906 OK 17
• Parties: CARLE et al. v. OKLAHOMA WOOLEN MILLS et al.
• Court: Oklahoma Supreme Court

86 P. 66

16 Okla. 515, 1906 OK 17

CARLE et al. v. OKLAHOMA WOOLEN MILLS et al.

Supreme Court of Oklahoma

February 15, 1906

Syllabus by the Court.

Plaintiff deeded to the defendant a tract of land in consideration of $1 and the performance of the conditions stated in a bond of $4,000, given to secure the performance of such conditions. Action was brought to recover the amount stipulated in such bond. Upon trial of the cause the court held that the plaintiff's right of recovery was not fixed by the amount named in the bond, but that their measure of damages was the value of the land conveyed, not to exceed the amount named in the bond. Plaintiffs thereupon amended their petition so as to state a cause within the holding of the court, and proceeded to final judgment. Held, that the plaintiff by such amendment and proceedings to trial thereunder waived any error of the court in its holding as to the measure of damages.

Error from District Court, Oklahoma County; before Justice B. F Burwell.

Action by J. S. Carle and Ella Carle against the Oklahoma Woolen Mills and others. Judgment for defendants. Plaintiffs bring error. Affirmed.

Hays Thorp & Thorp, for plaintiffs in error.

Flynn & Ames, for defendants in error.

GILLETTE J.

It appears from the record in this case that on the 3d day of April, 1902, the plaintiffs conveyed to defendants 20 acres of land, the same being a part of a tract of 156 acres owned by the plaintiffs, lying immediately west of the city of Oklahoma City, for the nominal consideration of $1, for the purposes of erecting thereon a woolen mill, and thereby enhancing the value of other property owned by the plaintiffs adjacent thereto. The defendant at the time executed and delivered to the plaintiff a bond, which is made the basis of this action, the material parts of which are in the following words:

"Know all men by these presents: That whereas, J. S. Carle and Ella Carle, of Oklahoma county, Oklahoma Territory, have conveyed to the Oklahoma Woolen Mills the following described real estate situate in Oklahoma county, Oklahoma Territory, to wit: [Then follows a description by metes and bounds of the premises.] For the nominal consideration of one dollar, for the purpose of erecting thereon a woolen mill and thereby enhancing the value of other property owned by the said J. S. Carle and Ella Carle adjacent thereto. Now this obligation witnesseth, that the said Oklahoma Woolen Mills as principal and John Threadgill, C F. Colcord, C. M. Meade, C. B. Ames, F. B. Zeigler and A. Classen, all of Oklahoma county, Oklahoma Territory, as sureties, are held and firmly bound unto the said J. S. Carle and Ella Carle of the same county and territory in the sum of four thousand dollars ($4000.00) to be paid to the said J. S. Carle and Ella Carle, their heirs, executors, administrators or assigns, within one year from the date thereof, for which payment, well and truly to be made, we bind ourselves, our heirs, executors and administrators jointly and severally by these presents. Sealed with our seal and dated this third day of April, A. D. 1902. Provided always that this obligation is upon the express consideration that if the above bounden the Oklahoma Woolen Mills, a corporation or its assigns or the said sureties or any or either of them and their heirs, executors or administrators shall cause to be erected upon the above described land a brick building not less than sixty (60) by two hundred (200) feet in size, to be used as a woolen mill and fully complete the same and furnish the same with suitable machinery for the operation of a woolen mill and so operate the same for a period of one year, and shall construct and maintain and operate an electric street car line along said main street in the city of Oklahoma City, from Walker street to the west line of Orchard Park Addition to the city of Oklahoma City, in the county of Oklahoma, territory of Oklahoma, within the time above specified, and shall complete said building for the woolen mill within three months from the date thereof, then the above obligation to be void, otherwise to remain in full force and effect. Witness our hands and seals this the third day of April, A. D. 1902. Oklahoma Woolen Mill, John Threadgill, Pres. John Threadgill, by C. F. Colcord. C. M. Meade. G. B. Stone. Anton H. Classen. C. B. Ames. F. B. Zeigler."

The petition of plaintiffs sets forth the execution and delivery of said bond, and alleges that the land was conveyed pursuant to the stipulations therein contained, for the purpose of enhancing the value of the remainder of said land owned by them, for townsite purposes, and that said bond was executed and delivered to the plaintiffs to secure the faithful performance of the matters and things stipulated in said bond to be performed, and that by the execution thereof the defendants promised and agreed to pay to the plaintiffs the sum of $4,000, the agreed value of the land conveyed, in the event that the defendants failed and neglected to erect a woolen mill on said land according to the terms and conditions of said bond, and within the time specified therein, and furnish the same with suitable machinery and operate the same; or failed or neglected to construct and have in operation a street car line as stipulated for in said bond within one year from the 3d day of April, 1902. The petition of the plaintiff thereafter alleges a failure on the part of the defendants to erect a woolen mill and furnish it with suitable machinery, and a failure to construct and operate the street railway contemplated and provided for, and concludes with the following prayer for relief: "Wherefore these plaintiffs pray judgment against defendants for the sum of $4,000 with interest thereon from April 3, 1902." The answer of defendants admits the execution of the obligation sued on, the plaintiff's ownership of the land described, and the conveyance of the same to the defendant Oklahoma Woolen Mill Company, and denies all the other allegations of the petition.

Upon the...