Dixon v. Stoetzel
| Citation | 1928 OK 663,136 Okla. 302,276 P. 730 |
| Decision Date | 20 November 1928 |
| Docket Number | Case Number: 18786 |
| Parties | DIXON v. STOETZEL. |
| Court | Supreme Court of Oklahoma |
¶0 1. Appeal and Error--Record--Oral Opinion of Trial Court not Considered on Appeal.
Where, at the conclusion of a trial had before the court without a jury, the court orally reviews the evidence and expresses its opinions upon the law and the facts involved in the case, and where there are no special findings of fact and conclusions of law asked for, and where the findings and judgment of the court are embodied in a journal entry, the oral opinion expressed by the court performs no office in a case-made, and cannot be considered by this court on appeal from a judgment of the trial court.
2. Appeal and Error--Trial--Effect of General Finding--Conclusiveness on Appeal.
In a civil action, triable to the court, where the finding of the court is general, such finding is a finding of each specific thing necessary to sustain the general finding; and where such finding is not clearly against the weight of the evidence, the judgment will be affirmed.
3. Same--Judgment Sustained.
Record examined, and held, that the judgment of the trial court is not clearly against the weight of the evidence.
Frank P. Smith and S. H. Horton, for plaintiff in error.
George H. Jennings, for defendant in error.
¶1 This action was commenced in the district court of Creek county by P. L. Stoetzel, defendant in error, against Charles Dixon, plaintiff in error. The petition and supplemental petition filed by the plaintiff below alleged that on August 5, 1926, he, the plaintiff, through his agent and attorney in fact, J.
¶2 O. Smith, entered into an oral contract with the defendant, wherein he sold and delivered to the defendant a certain automobile agency for Jordan and Hupmobile products, including certain accessories and equipment, for the sum of $ 3,000; that defendant paid to plaintiff on the purchase price of such agency the sum of $ 1,000; that the balance due by defendant was $ 2,000; further alleged that the defendant was about to remove and dispose of the assets of the motor sales agency and the assets of such business, and intended to abandon the contract, and refused to carry out the terms of the sale; and prayed that a receiver be appointed for the property, and that plaintiff recover the sum of $ 2,000 with interest.
¶3 The defendant, Charles Dixon, answered, admitting that he purchased from the plaintiff the agency referred to, and that he was to pay $ 3,000 for the same, but denied that he was indebted to the plaintiff for the balance of the purchase price, $ 2,000, because of the fact that the plaintiff, through his agent, had fraudulently induced him to purchase the same by representing that the agency had been carried on at a net profit; that the volume of business was large; that there had been negotiated two sales of automobiles and that all there remained to be done was to deliver the cars to the respective purchasers and collect therefor; that such representations were untrue, and that when defendant learned the same, he turned the agency back to the plaintiff, and prayed that plaintiff take nothing; and by way of cross-petition, he, defendant, alleged that he had been induced by fraud to purchase the agency and pay $ 1,000 on the purchase price thereof, and prayed a recovery for the sum of $ 1,000, the amount paid by him on the purchase price, and for the further sum of $ 250 damages.
¶4 A reply was filed by the plaintiff, and upon a trial of the cause to the court, without a jury, judgment was rendered in favor of the plaintiff for the sum of $ 2,000 with interest.
¶5 Upon denial of motion for a new trial, the defendant brings this appeal and sets up several grounds of error for a reversal of the judgment, which are presented and argued in the brief of the plaintiff in error under the following heads:
¶6 The first two propositions above stated and presented by plaintiff in error are based upon the remarks or statements of the court, which are incorporated in the case-made and evidently copied from the notes of the court reporter. Upon the conclusion of the evidence, the trial judge orally reviewed certain features of the evidence and expressed his opinion as to the law applicable to the case, relating to a rescission of a contract and return or offer to return the property taken under the contract, in which he indicated that it was the opinion of the court that the defendant, plaintiff in error here, had not met the requirements of the law with reference to rescission, and having so failed he could not recover.
¶7 No request was made by either of the parties for any special findings of fact and conclusions of law. The oral remarks of the court were not incorporated in or made a part of the journal entry. The journal entry recited in part as follows:
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