Clark v. O'Toole

• Decision Date: 09 March 1908
• Docket Number: Case Number: 1638 OK Ter
• Citation: 94 P. 547,1908 OK 27,20 Okla. 319
• Parties: CLARK et al. v. O'TOOLE et al.
• Court: Oklahoma Supreme Court

1908 OK 27

94 P. 547

20 Okla. 319

CLARK et al. v. O'TOOLE et al.

Case Number: 1638 OK Ter

Supreme Court of Oklahoma

Decided: March 9, 1908

Syllabus

¶0 1.CANCELLATION OF INSTRUMENTS--Deeds--Fraud--Prima Facie Cause of Action.In an action for rescission and cancellation, where the proof adduced by plaintiffs shows that they were the owners of a tract of land in Oklahoma; that defendants were the owners of a tract of land in Missouri; that, relying on certain false and fraudulent representations made by defendant to plaintiffs, they mutually agreed to and did exchange said lands, together with warranty deeds therefor; that the lands in Missouri were shortly thereafter ascertained by plaintiffs not to be as represented and a part thereof wholly worthless; that thereupon plaintiffs promptly notified defendants to that effect, and offered to rescind the trade and reconvey the lands to defendants; that said lands had been kept by them in status quo--is sufficient to prove a prima facie cause of action and a demurrer to the evidence, sustained by the trial court, was error.

2.SAME--Pleading--"Offer to Restore"--Sufficiency.In an action for rescission and cancellation of a deed fraudulently obtained, an allegation in the petition that plaintiffs are ready and willing to execute and deliver a deed to the land traded for, to defendants, is a sufficient "offer to restore," to bring them within the terms of section 827, Wilson's Rev. & Ann. St. Okla. 1903.

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

Action by John D. Clark and Elizabeth Clark against Thomas O'Toole and Mary O'Toole.Judgment for defendants, and plaintiffs bring error.Reversed and remanded.

James L. Clark, for plaintiffs in error.

Shartel, Keaton & Wells, for defendants in error.

TURNER, J.

¶1 It seems from the very confused state of this record that, at the time the Supreme Court of the territory of Oklahoma handed down its opinion herein, there was then pending in this cause a motion to dismiss which the court seems to have passed over sub silentio.In rendering its opinion the court affirmed the judgment of the lower court upon the ground that "there is no statement of recital in the case-made that it contains all the evidence introduced upon the trial," but, on motion for a rehearing, it being ascertained that the case-made did contain such recital, the motion was sustained, and the case is now before us on rehearing.

¶2 This is a suit in equity brought by the plaintiffs in error, plaintiffs below, against the defendants in error, defendants below, on September 26, 1901, in the district court of Oklahoma county to decree the cancellation of a deed to the N.E. 1/4 of section 30, township 14, range 2 west, I. M., in Oklahoma county, on the ground that the deed was obtained from them by false and fraudulent representations.The defendants answered by general denial, and the cause was tried to the court without a jury, and after plaintiffs had concluded their evidence the defendants interposed a demurrer thereto upon the ground that the plaintiffs had failed to prove facts sufficient to constitute a cause of action, which was sustained and judgment rendered for defendants.To all of which plaintiffs excepted, and now bring this case here for review.

¶3 The principal question which the plaintiffs in error seek to have reviewed is that the evidence offered by the plaintiffs was sufficient to make a prima facie case, and that therefore the court erred in sustaining a demurrer thereto.But is the record sufficient to present that question?Let us see.In Ragains v. Geiser Mfg. Co., 10 Okla. 544, 63 P. 687, the court said:

"After the plaintiff had introduced all of his evidence, the defendant filed his demurrer thereto, which was sustained by the court.Thereupon judgment was rendered for the defendant for costs, from which the plaintiff appealed.We have carefully read the entire record in this case, and find that a considerable portion of the evidence introduced upon the trial has been omitted from the case-made.It was the duty of the appellant, when he appealed from the judgment of the trial court, if he desired to have this court review the evidence introduced upon the trial and determine as to whether or not the demurrer to the evidence was properly sustained, to bring up all the evidence introduced upon the trial, by case-made or bill of exception; and, inasmuch as he failed to do this, he is not in a position to say that the trial court was not authorized to render the judgment entered in this case.* * * This court has heretofore announced the rule that a case will not be reviewed upon the evidence unless all the evidence bearing upon the particular point sought to be reviewed is presented by the case-made or bill of exceptions.Pappe v. Insurance Co., 8 Okla. 97, 56 P. 860, and cases therein cited."

See, also, Pierce, Sheriff, v. Engelkemeier, 10 Okla. 308, 61 P. 1047.

¶4 Invoking this rule, defendants contend that "it is an undisputed fact that the pretended case-made affirmatively shows that it does not contain all the evidence introduced and considered by the trial court in the determination of said cause," and that "page 72 indicates rather strongly that one or more pages have been torn out"; but this could hardly be the case, for the reason that the last question and answer on page 71 of the case-made reads as follows: "Q.Did you talk to any other witness?A.No, sir, not that I know of, nothing to speak of; if there was any-- (and the first line of page 72 reads)-- thing said I just walked off"; showing that the objection is wholly unfounded, as the word "anything" is hyphenated, leaving "any" on page 71 and "thing" on page 72 of the record.

¶5 Their next contention is "that, on page 157 of said record, counsel for plaintiffs in error, in support of their amendment to their motion for a new trial, refer to the depositions of the following witnesses taken and filed in said court on behalf of defendants, to wit: Albert Slade, J. M. Pearson, Frank H. Morgan, E. B. Churchill, G. W. Clark, and Lum Wilson, and ask that said testimony, together with the photographs of the dwelling house attached thereto, be considered as a part of said motion for a new trial, yet only two of these depositions appear to be contained in the record, and it is only fair to assume that the trial court in passing on the motion for a new trial complied with the request of said counsel and examined and considered all of them."Conceding the depositions of these witnesses, "together with the photographs of the dwelling house attached thereto," to have been filed in support of plaintiffs' motion for a new trial and considered on the hearing thereof, it is apparent that they were not read in evidence on the trial and do not fall within the reason of the rule stated, which is that, in order to induce this Court to say that the trial court erred in sustaining a demurrer to the evidence, this court must have before it all the evidence upon which the trial court acted.As the trial court did not have these depositions before it at the time it sustained the demurrer to plaintiff's evidence, the same are immaterial to our consideration of the error alleged.

¶6 It is contended by defendants that "it is shown by the record that a certain plat was submitted to and used by some of the witnesses for the plaintiffs in error, whose depositions purport to be set out in the record, as the basis of some material testimony, and is designated as 'Exhibit A,' and that it does not appear as a part of the evidence in the case-made."The record discloses that such was used in the interrogation of the photographer, Mr. Fry, upon which he designated certain points from which he took photographs introduced in evidence.It was also used in the interrogation of the witness Crippin, as shown on pages 108 and 116 of his testimony, to illustrate the general lay of the land and the location of the ravines thereon, but nowhere in this record does it appear that such plat was introduced in evidence.We can see no error in this.To illustrate the facts desired to be set forth, it is a general rule that such a plat can be used without being formally introduced into evidence, where the same is merely ancillary to the witnesses' testimony.4 Enc. of Evid. p. 636.

¶7 After a careful search of the briefs, this seems to be substantially all of the defendants' contention on the point as to whether the record contains all the evidence.

¶8 From this contention, in effect, that the record does not contain enough, defendants' next contention is that it contains too much.In support of this they urge, among other things, that "counsel for plaintiffs in error is recalled for further examination, as shown at the bottom of page 163, and the last question propounded to him, as shown on said page, is as follows: 'Judge Brown, this photograph is one described in that deed?'Whereas, without any preliminary statement or explanation whatever, the following page (164) contains a purported copy of 'Homestead Certificate 10334' in favor of Zenas S. Whaley, which is followed on pages 165 to 171, inclusive, by various other instruments of conveyances, etc., and at the top of page 172 appears an answer of some witness to some question in the simple language of 'yes, sir.'"There is nothing in this to lead us to Believe that any of Judge Brown's testimony was left out.The pages are correctly numbered, and nothing appears to break the continuity of the testimony.The insertion into the midst of Judge Brown's testimony of four pages of deeds introduced in evidence is a mere matter of taste as to how the case-made should be made up, concerning which we have nothing to say.

¶9 Special attention is next called to the fact "that on page 172Frank W. Inglis, official court stenographer, certifies that the thirty-eight pages of the record immediately preceding his said certificate contains a full, true, and...