Catlett v. Jordan, 33799

• Citation: 206 Okla. 473,244 P.2d 564
• Decision Date: 26 February 1952
• Docket Number: No. 33799,33799
• Parties: , 1952 OK 83 CATLETT v. JORDAN et al.
• Court: Oklahoma Supreme Court

Page 564

244 P.2d 564

206 Okla. 473, 1952 OK 83

CATLETT v. JORDAN et al.

No. 33799

Supreme Court of Oklahoma.

Feb. 26, 1952.

Rehearing Denied April 23, 1952.

Application for Leave to File Second Petition for Rehearing

Denied May 27, 1952.

Syllabus by the Court.

1. In an action of equitable cognizance this court will consider the whole record and weigh all the evidence and when it is determined that the trial court's judgment is against the clear weight of the evidence, we will render, or cause to be rendered the judgment that should have been rendered in the trial court.

2. Record and evidence examined, held, judgment of the trial court is against the clear weight of the evidence.

A. Francis Porta, El Reno, for plaintiff in error.

John Barry, J. H. Jarman, John Jarman, Jr., and Ed White, all of Oklahoma City, for defendants in error.

PER CURIAM.

This is an appeal from a judgment of the district court of Oklahoma County, Oklahoma, in favor of the defendants. There, John G. Catlett was plaintiff, and Robert M. Jordan, A. R. Jordan and The Double R Drilling Company, a domestic corporation, were defendants.

It appears from the record that in 1935 Mr. Catlett, Harlan M. Joseph, Florence Caulk Grier and Mrs. Raymond A. Weisner and others became tenants in common in certain mineral interests in Township Fourteen (14) North, Range One (1) West of the Indian Meridian in Oklahoma County, Oklahoma, by purchase from the Bart Royalty Company. These interests were individually owned by the purchasers and were scattered through several sections Northeast of the town of Arcadia.

The interests of Mrs. Weisner, Mr. Joseph and Mrs. Grier were managed by Mr. Raymond Weisner and hereinafter these interests will be referred to as the 'Weisner interests.' The Weisners, Harlan M. Joseph and Florence Caulk Grier were residents of the State of Maryland.

Mr. Catlett had become acquainted with these people during the negotiations for the purchase of the interests of the Bart Royalty Company; and it was through this acquaintance that the plaintiff was able to acquire leases on their mineral interests for the defendants.

The defendants, Robert M. Jordan and A. R. Jordan, are brothers. The defendant, The Double R Drilling Company, and the two brothers were engaged in the production of oil. Robert M. Jordan was the Vice-President of the Double R Drilling Company and its executive officer. They desired to drill some wells in the area Northeast of Arcadia and learned that the plaintiff, who was theretofore unknown to them, could be instrumental in obtaining leases on the Weisner interests and opened negotiations with him for that purpose. The leases were obtained through the acquaintance, assistance and influence of the plaintiff.

The plaintiff alleged in his second amended petition that he was engaged in the business of buying, selling and brokering oil and gas mining properties; that the defendants were engaged as partners, joint adventurers or otherwise in the business of buying, selling and developing oil and gas mining properties; that in the fall of 1943 the plaintiff and defendants entered into an oral agreement for the procurement and development of a block of leases in Township Fourteen (14) North, Range One (1) West of the Indian Meridian in Oklahoma County, Oklahoma; that under such agreement the plaintiff, on the one hand, and the defendants, on the other, were to share the costs of such leases equally, and each was to own an undivided one-half interest therein; that the plaintiff fully performed his part of the agreement and obtained the leases requested by the defendants; that at various times in the process of obtaining such leases the original oral agreement was altered in writing, and in lieu of an undivided one-half interest as to certain leases procured under such written alterations, the plaintiff took other property or cash considerations; that the contract, insofar as the defendants were concerned, was wholly and fully performed except with respect to an oil and gas lease upon the Weisner interests in and under, 'The Northeast Quarter (NE 1/4) of Section Four (4), Township Fourteen (14) North, Range One (1) West of the Indian Meridian in Oklahoma County, Oklahoma;' that the plaintiff was entitled to be adjudged the owner of an undivided one-half interest in and to that lease, insofar as the same affected the mineral interest owned by Harlan M. Joseph, Florence Caulk Grier and Mary A. Weisner, approximating 16 royalty acres, upon his tender and payment of one-half of the cost of such lease.

The defendant, Robert M. Jordan, denied generally the allegations of the plaintiff and in addition thereto charged the plaintiff with laches and pleaded the statute of frauds. Robert M. Jordan also denied that there was ever any concert of action between himself and his brother, A. R. Jordan. The defendant, A. R. Jordan, denied generally the allegations contained in the plaintiff's petition and specifically denied that he was ever associated with the other defendants as partners or otherwise. The defendant, The Double R Drilling Company, denied the allegations of the plaintiff's petition, and by cross-petition sought recovery from the plaintiff of his proportionate part of the costs of the drilling of a well upon the lease in question by reason of his ownership, individually, of certain minerals thereunder which he had not leased to the defendants.

The issues raised by the cross-petition of the Double R Drilling Company were later resolved in the Journal Entry by agreement of the parties.

Each defendant filed a separate demurrer to the amended petition of the plaintiff, which was overruled with exceptions. After the usual action by the court on demurrers and motions, trial was had to the court. Upon conclusion of the introduction of evidence of the plaintiff, the defendants demurred thereto, which demurrer was overruled and exceptions allowed. Thereupon the defendants introduced evidence in support of their separate answers and all parties rested. After the cause was argued to the court, the court made the following finding: 'The court finds the issue of facts in favor of the defendants and that they are entitled to judgment against the plaintiff.' It is from this judgment that the plaintiff appeals.

It is seen from the pleadings and the evidence that plaintiff's theory of the case is that it was a joint adventure or partnership organized for the purpose of acquiring the leases; that the plaintiff was to contribute to the adventure his ability to acquire the leases and one-half of the cost of the leases; that the entire agreement over a period of time was performed by all the parties thereto except with respect to the one lease which is the subject of this action; that in equity he is entitled to enforce the provisions of the original agreement as to this one remaining item, by reason of complete performance on his part and practical performance on the part of the defendants.

On the other hand, it is contended by the defendants that plaintiff and defendants were not partners or joint adventurers; that if the purported oral agreement was made the same is in violation of the statute of frauds; that in a case of equitable cognizance a judgment of the trial court will not be disturbed unless clearly against the weight of the evidence.

Defendants' contention that the purported transactions were in violation of the Statute of Frauds is without merit.

In Abraham v. Slyman, 90 Okl. 31, 215 P. 931, we said that an oral agreement to share in the profits and losses arising from the purchase and sale of real estate is not within the statute of frauds; and the existence of such partnership and the interest of the parties therein may be established by parol evidence. This rule was followed in Florence v. Thompson, 92 Okl. 156, 218 P. 800. To the same effect is the holding in Ganas v. Tselos, 157 Okl. 107, 11 P.2d 751, 754. Therein it was contended that the oral agreement was indefinite, uncertain, and unascertainable and not sufficient as a basis of an action. In answering this contention, the court said: 'It is contended by the defendant that the court erred in rendering judgment on the basis that a partnership existed. The trial court found that after the purchase of the property at foreclosure sale the defendant and the plaintiff entered into an oral contract, whereby it was agreed that the plaintiff was to take charge of both of the leases and to operate and further develop them, and that whenever the plaintiff had advanced a sum equal to the investment of the defendant, less proper credits, the parties should become equal owners of the undivided interest in the leaseholds, and that the defendant would convey to the plaintiff an undivided one-half interest in the property. The court further found that the plaintiff took charge of the property and made improvements and expenditures under the agreement, and that such acts on the part of the plaintiff took the contract out of the statute of frauds and rendered it legal and enforceable, and that an action could be maintained for an accounting. We think the testimony is sufficient to warrant the finding of the trial court that such a contract existed.'

In Kasishke v. Keppler, 10 Cir., 158 F.2d 809, it was held that an oral contract whereby plaintiff was to use his talent as a geologist in locating and recommending oil and gas properties to the defendant therein who was to undertake acquisition and development of property and plaintiff was to receive an interest in the properties acquired after defendant had been reimbursed for expenses created a joint adventure under Oklahoma law, and cited Florence v. Thompson and Abraham v. Slyman, supra, in support of this conclusion. See, also, Kasishke v. Baker, 10 Cir., 146 F.2d 113, and cases cited therein, which announces the rule applied in the Kasishke v. Keppler, case, supra.

Therefore, the only question of merit raised by ...