Cooke v. Sinopoulo

• Decision Date: 19 September 1944
• Docket Number: 31426.
• Citation: 151 P.2d 791,194 Okla. 352,1944 OK 244
• Parties: COOKE v. SINOPOULO.
• Court: Oklahoma Supreme Court

151 P.2d 791

194 Okla. 352, 1944 OK 244

COOKE v. SINOPOULO.

No. 31426.

Supreme Court of Oklahoma

September 19, 1944

As Corrected Oct. 16, 1944.

Syllabus by the Court.

1. In the absence of abuse of discretion, arbitrary action or error with respect to some simple and unmixed question of law this court will not disturb an order which grants a new trial.

2. Where a new trial is granted for specific reasons, assigned in the order, review by this court will be confined to the reasons assigned.

3. When in order to ascertain whether reasons assigned as grounds for the granting of a new trial constitute abuse of discretion exercise of arbitrary power or error as to some simple and unmixed question of law it is necessary to examine the record, this court will make such examination.

4. When a trial has been had to the court of a cause of action based upon assignment of a contract, payment under which was contingent upon performance by the assignors, and there is evidence which would support a judgment denying the recovery and a judgment is rendered for the parties occupying the position of plaintiff and this judgment is vacated and a motion for new trial sustained for reasons which do not amount to an abuse of discretion, exercise of arbitrary power or error as to some simple and unmixed question of law this court will not interfere with the ruling of the trial court thereon.

Appeal from District Court, Oklahoma County; Sam Hooker, Judge.

Action by Charles B. Cooke and Alfred G. Smith against John Sinopoulo to recover amount alleged to be due under assignment of a contract. From an order vacating a judgment for plaintiffs and granting a new trial, E. A. Fariss executor for estate of Charles B. Cooke, deceased, and W. R Wallace, administrator of the estate of Alfred G. Smith deceased, appeal.

Affirmed.

Everest, McKenzie & Gibbens and Blakeney & Blakeney, all of Oklahoma City, for plaintiffs in error.

Halley, Douglass, Felix & Douglass, of Oklahoma City, for defendant in error.

PER CURIAM.

This is an appeal by the executor and the administrator respectively of the estates of Charles B. Cooke and Alfred G. Smith deceased, from an order which sustained a motion therefor and granted a new trial.

The testate and intestate respectively of the plaintiffs in error by cross-petition in an action instituted by Leo J. Portman against H. R. Hollenback et al., sought to recover from John Sinopoulo, an interest which had been assigned to them by Hollenback in a contract which had been executed by Sinopoulo to Hollenback, whereby the former agreed to pay the latter the sum of $15,000 upon the completion of an oil and/or gas well upon certain described premises. Plea of Sinopoulo was failure of consideration. Reply plead estoppel by conduct. Trial was had to the court without the intervention of a jury and judgment in favor of testate and intestate of plaintiffs in error was duly entered. On hearing of motion for new trial the court, convinced that it had erred in rendering the judgment which it had theretofore rendered, proceeded to vacate the same and granted a new trial. The court assigned as reasons for its action the following:

"The Court sustains and grants said motion for a new trial of the defendant, John Sinopoulo, upon the following legal grounds:

That time was the essence of the contract between H. R Hollenback and John Sinopoulo under date of February 10, 1938 which provided for purchase of an oil payment of $50,000.00 payable out of 1/4th of 7/8th working interest in this lease; that the parties so regarded it inasmuch as when the time expired on June 10th an extension was sought and granted until July 10th and according to the verbiage of the contract and the nature of the subject matter there is no question in my mind that time was the essence of this contract and it should be so construed.

I am of the opinion, however, that defendant, Sinopoulo, has waived any right to rely upon the expiration of time in order to escape liability under this contract; because, although this contract expired July 10, 1938, Sinopoulo rode the proposition until about September 1, 1938 when for the first time he let it be known that he had a doubt as to whether he would fulfill his contract; testimony of the witnesses, Harold Wescott and Alfred G. Smith, and the conduct of John H. Halley, attorney for defendant, Sinopoulo in writing the letter on September 8, 1938, indicates to my mind that it was between September 1st and the 8th or 9th of September before Sinopoulo made up his mind what he intended to do; that prior to that time it was generally assumed by everybody that Sinopoulo would fulfill his contract and the Court doubts if any controversy was raised by anyone until then; that Cooke and Smith would not have employed Mr. Halley, who then represented Mr. Sinopoulo, nor would Mr. Halley have accepted employment had there been any controversy or suspicion that Mr. Sinopoulo did not intend to comply with his contract; that, when Sinopoulo raised a doubt as to willingness to comply with this contract, Mr. Halley ascertained this for the first time and immediately wrote Cooke and Smith and withdrew as their attorney; the Court, therefore, holds Mr. Sinopoulo waived the time proposition and cannot escape his contract because the well was not finished within the time specified therein.

The Court is of the opinion that Mr. Sinopoulo cannot be held upon this contract for the reason there was no consideration granted or given to him to support the waiver and the Court thinks that is absolutely necessary.

The Court further is of the opinion that, because Mr.

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