Cecil v. Montgomery

• Decision Date: 05 June 1923
• Docket Number: Case Number: 13267
• Parties: CECIL v. MONTGOMERY.
• Court: Oklahoma Supreme Court

1923 OK 331

218 P. 311

95 Okla. 184

CECIL v. MONTGOMERY.

Case Number: 13267

Supreme Court of Oklahoma

Decided: June 5, 1923

Syllabus

¶0 1. Joint Adventures--Action for Share of Profits--Parties.

Where four persons agree to share equally the profits of a joint adventure involving a single transaction, one of the parties may sue another of the parties, who has appropriated the entire profits, for his proportionate share thereof, without joining the remaining joint adventurers as parties.

2. Same--Findings--Evidence.

We have examined the record carefully, and are of the opinion that the evidence adduced at the trial amply sustains the findings of fact of the trial court in favor of the plaintiff, Montgomery.

3. Evidence -- Secondary Evidence--Parol Evidence of Writings.

The rule rejecting secondary evidence of a writing is subject, among others, to the exception that when the originals consist of numerous accounts, or other documents which cannot be examined in court without great loss of time, and the evidence sought from them is only the general result of the whole, oral evidence thereof is admissible.

4. Joint Adventures--Action for Share of Profits--Judgment--Affirmance.

Upon the whole record, we are of the opinion that the parties have had a fair and impartial trial and that no reversible error has been committed requiring the reversal of the judgment rendered by the trial court.

Error from District Court, Carter County; B. C. Logsdon, Judge.

Action by George H. Montgomery against James M. Cecil for share of profits of joint adventure. Judgment for plaintiff, and defendant brings error. Affirmed.

Ledbetter, Furman & Ledbetter, for plaintiff in error.

Sigler & Jackson, for defendant in error.

KANE, J.

¶1 This was an action commenced by defendant in error, plaintiff below, against the plaintiff in error, defendant below, for the purpose of recovering his share of the fruits of a joint adventure.

¶2 The petition alleged, in substance, that the plaintiff and the defendant, together with J. R. Knight and Waldo Wadkins, entered into a certain oral contract by the terms of which they agreed to purchase at a certain guardian's sale the interest of a minor in a certain tract of land, the agreement and consideration being that Knight would carry on the negotiations and Montgomery would pass upon the title and attend to all the legal matters involved in the sale; that the defendant. Cecil, would furnish the money, and after he had received back the amount paid, together with ten per cent. interest, each of the parties would have and be entitled to a one-fourth interest in the land; that after the land was acquired in the name of Cecil pursuant to the contract, an oil and gas lease was executed thereon for which Cecil received the sum of $ 6,000; that after retaining out of said sum all the money he had expended, Cecil paid Montgomery the sum of $ 1,000 as his share of the money received for the lease. Thereafter oil was discovered on the land, and Cecil then ceased to recognize the interest of Montgomery, although he has been receiving the royalties from the oil produced, and refuses to pay Montgomery any part thereof. That Montgomery is unable to state how much money has been paid to Cecil in royalties, but that approximately $ 10,000 has been paid. Wherefore Montgomery prays, first, that a receiver be appointed; second, that Montgomery be adjudged to be the owner of an undivided one-fourth interest in said land, and that his title be quieted as against the defendant; third, that Montgomery have an accounting against Cecil and have judgment for one-fourth of the money collected for oil royalties, and, fourth, that Montgomery have such other and further relief as he may be entitled to.

¶3 In his answer, Cecil denied each and every allegation contained in the petition, and further alleged that if Montgomery ever had a right to participate in the transaction mentioned and referred to in his petition, the right had long since been lost by the failure of Montgomery to prosecute his action, if any he had; that Montgomery was guilty of such laches that it would be inequitable to enforce the said alleged contract; that if Montgomery ever had any cause of action, the same was barred by laches and the statute of limitation.

¶4 To this answer, Montgomery filed a reply which is in form a general denial.

¶5 Upon trial to the court, findings of fact and conclusions of law in favor of the plaintiff were made, upon which judgment was duly entered substantially as prayed for, to reverse which this proceeding in error was commenced.

¶6 Counsel for plaintiff in error in their brief state their grounds for reversal under three propositions as follows:

"First. It is our contention that in an equitable action to enforce a joint adventure, all persons parties of the original undertaking must be made parties to the suit either as plaintiffs or defendants.

"Second. It is our contention that under the testimony introduced in this case and the law applicable thereto the original agreement for a joint adventure, if any such agreement ever existed, was not carried out by the parties to the agreement, in that the testimony shows that the lands in controversy were to be purchased on the understanding that the sale of an oil and gas lease within 60 days would repay the purchase price of the property to Cecil, after which the property would be jointly owned, and that no sale within said time could be made. And, further, if any agreement for a joint adventure ever existed, Montgomery lost and abandoned his rights thereunder by his failure and refusal to perform the duties required of him under said agreement, and by his negligence is guilty of such laches that he has barred himself from any recovery.

"Third. It is our

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