Crosbie v. National Bank of Commerce

• Decision Date: 16 May 1922
• Docket Number: 10695.
• Citation: 207 P. 311,86 Okla. 174,1922 OK 175
• Parties: CROSBIE ET AL. v. NATIONAL BANK OF COMMERCE ET AL.
• Court: Oklahoma Supreme Court

207 P. 311

86 Okla. 174, 1922 OK 175

CROSBIE ET AL. v. NATIONAL BANK OF COMMERCE ET AL.

No. 10695.

Supreme Court of Oklahoma

May 16, 1922

Syllabus by the Court.

The language of a contract is to govern its interpretation, and the court in construing the contract has no authority to substitute one word, for another, unless in interpreting the language according to its real meaning would involve an absurdity, or produce an unreasonable result, or unless the contract is ambiguous and it becomes necessary to do so to express the real intent of the parties to the contract.

Under and by virtue of section 948 and 954, Rev. Laws 1910, the language of the contract is to govern its interpretation, and the words are to be understood in their ordinary and popular sense, or unless a special meaning is given to them by usage in which case the latter must follow.

The word "peaceable" in connection with the word "possession" in its ordinary and popular sense is used as contradistinguished from disputed or contested possession, and that it shall be under a claim of ownership.

When there is a trial by a court without the intervention of a jury, and the court makes a general finding in favor of one of the parties and against the other, and there is no competent testimony reasonably tending to support the judgment, the same will be reversed on appeal.

Record examined, and held: There is no competent evidence to support the judgment of the court, and the judgment is reversed.

Appeal from District Court, Wagoner County; Benjamin B. Wheeler Judge.

Action by J. E. Crosbie and others against the National Bank of Commerce and others, in which W. A. Brigham, by permission intervened. From a judgment in favor of the intervener the plaintiffs appeal. Reversed and remanded for new trial.

C. A Steele and W. A. Daugherty, both of Tulsa, for plaintiffs in error.

David A. Kline, of Muskogee, for defendant in error Brigham.

McNEILL J.

J. E. Crosbie et al. commenced this action against the National Bank of Commerce of Coweta to recover $1,200 deposited in said bank by the terms of an escrow agreement executed by H. C. Zeigler and W. A. Brigham; H. C. Zeigler having assigned his interest to Crosbie and Gillespie. The agreement was dated March 17, 1914, and was substantially as follows: That W. A. Brigham had executed and delivered to Zeigler a certain oil and gas lease on certain land situated in Wagoner county and part of the consideration was that Zeigler was to pay $1,200 bonus, the agreement recited that there was a possibility of defect in the title of Brigham whereby Zeigler might be deprived of the peaceable and quiet possession of the same. The agreement then reads as follows:

"It is therefore agreed between the parties hereto that said $1,200 shall now be deposited in the National Bank of Commerce of Coweta, Okl., and there remain for the space of 120 days from this date, at the end of which time, if the title to said property in said W. A. Brigham, shall not have been questioned and brought in issue by legal proceedings, or the said H. C. Zeigler has not thereby been deprived of the peaceable possession thereof by reason of such legal proceedings, then the same sum of $1,200 shall be unconditionally turned over and paid to said W. A. Brigham. This agreement shall be deposited with and remain in said bank for the space of 120 days from date, and may be examined by but not removed therefrom, by either party hereto. In case such adverse proceedings should be begun during said time, it is agreed that said H. C. Zeigler may withdraw said $1,200 or use the same or such part

thereof as may be necessary in defending our common interest, as may be then agreed upon between the parties hereto, but in no event shall said H. C. Zeigler, or his assigns, surrender the possession of said premises to any stranger to this agreement except to his associates J. E. Crosbie, F. A. Gillespie, and F. D. Zeigler." The petition alleged that in pursuance to the above agreement the $1,200 was deposited in the bank; that on the 14th day of July, 1914, and within 120 days from the 17th day of March, John S. Bilby brought an action in the district court of Wagoner county against W. A. Brigham, H. C. Zeigler, and a tenant of Brigham by filing a petition in said court and causing summons to be issued thereon, and alleged in the petition that Bilby was the owner of the premises and entitled to possession. The plaintiff further alleged that Zeigler had not withdrawn the $1,200 from the bank; that on the 23d day of July, 1914, he executed to the agent of the plaintiffs an order for said money, and that demand had been made for payment of the same and was refused. Plaintiff claims that under and by virtue of the escrow agreement and the commencement of the suit of John S. Bilby against Brigham and Zeigler within 120 days, Zeigler was entitled to return of said money.

To this petition the bank filed an answer, claiming no interest in said money. W. A. Brigham by permission of the court intervened, and admitted execution of the escrow agreement and asked that he be decreed to be entitled to $1,200 under the agreement. He further alleged that the suit filed by Bilby did not disturb Zeigler in possession of his oil and gas lease, and further alleged the plaintiffs induced Bilby to bring said suit in order to avoid the payment of said $1,200. The plea of intervention was amended, and a further plea made that Brigham obtained a judgment in the federal court against John S. Bilby quieting his title, that the suit of John S. Bilby in the district court against Brigham and Zeigler terminated in favor of Brigham. He further pleaded that a separate oral agreement, and as a part of the consideration of the contract it was agreed between Brigham and Zeigler that nothing should be said to any person, and John S. Bilby in particular, about the matter or interest which Zeigler had by virtue of his lease, and Zeigler violated said agreement, and that was the direct cause of Bilby instituting the suit within 120 days. With the issues thus framed the cause was tried to the court without a jury. The bank deposited the money with the court clerk, and is no longer interested...