First Nat. Bank of Okmulgee v. Gum
| Decision Date | 09 September 1930 |
| Docket Number | Case Number: 19505 |
| Parties | FIRST NAT. BANK OF OKMULGEE et al. v. GUM et al. |
| Court | Oklahoma Supreme Court |
¶0 1. Appeal and Error--Subsequent Appeals--Law of Case.
A decision of this court becomes the law of the case in the lower court and in this court on a second appeal. It will not be reviewed or reversed on a second appeal unless this court is satisfied that gross and manifest injustice has been done by its former decision.
2. Evidence--Customs and Usages--Oral Negotiations--Written Contract Complete in Itself.
A written contract complete within itself is not subject to modification by proof as to the usage and customs prevailing in the industry concerning which the contract is made, or by evidence concerning the negotiations which preceded the execution of the ultimate written agreement.
3. Evidence--Opinions--Lack of Knowledge as to Facts.
A court does not commit error in refusing to permit a witness to make a guess as to the production of an oil well after he has testified that he does not know what production it had and that he had never gauged it.
4. Evidence--Party's Testimony Given at Former Trial Properly Excluded.
No reversible error is shown herein by reason of the trial court refusing to permit a party to the suit to introduce as a part of his testimony a part of the testimony he gave in the former trial.
5. Appeal and Error--Discretion of Court--Amendment of Pleadings to Conform to Proof.
An order permitting the amendment of pleadings to conform to the proof, made after evidence is introduced and before the cause is submitted to the jury, will not be reversed unless clear abuse of discretion is shown.
6. Appeal and Error--Review--Objections to Instructions not Made Till After Verdict.
Objections made to instructions given after the jury has returned its verdict are too late to be considered by the trial court, and the exceptions thereto will not be reviewed by this court on appeal.
Commissioners' Opinion, Division No. 2.
Error from District Court, Okmulgee County; James M. Hays, Judge.
Action by Lester B. Gum and James H. Topp against the First National Bank of Okmulgee and C. P. Smith, trustee. Judgment for plaintiffs, and defendants appeal. Affirmed.
Geo. C. Beidleman, for plaintiff in error First National Bank.
A. L. Emery, for plaintiff in error C. T. Smith, as trustee.
H. C. Thurman and Byrne A. Bowman, for defendants in error.
¶1 Lester B. Gum and James H. Topp filed suit against the First National Bank of Okmulgee and C. T. Smith, trustee, alleging that the plaintiffs had entered into a contract with C. T. Smith, as trustee, for the purchase of a producing oil and gas lease; that under the terms of this agreement they deposited $ 5,000 with the First National Bank; that Smith, trustee, had in the written contract misrepresented certain facts with reference to the production of the lease which entitled them to the refund of the money; that demand had been made on the bank and on Smith for the money. They alleged that the money had not been paid them; that Smith, as trustee, was claiming some interest in and to it. They prayed for judgment adjudging them to be entitled to the money and for judgment against the bank for the $ 5,000, with interest.
¶2 The bank, by answer, admitted holding the money under the agreement, disclaimed any interest in it, and asked that, on final determination as to who was entitled to the money, they be instructed to pay the $ 5,000, and that sum only, to the rightful owner, and that it might go hence with its costs.
¶3 C. T. Smith, trustee, answered, asserting that he had fully complied with all the terms of the contract; that he was entitled to the money under the terms thereof; denied generally the allegations in the petition, and denied that any demand had been made that the money be released to the plaintiffs.
¶4 James H. Topp prior to the second trial assigned all his interest in and to this claim to Lester B. Gum. They will be referred to herein as if Topp were yet interested in the judgment.
¶5 After the evidence was in, the plaintiff asked and was allowed permission to amend his petition to ask for judgment for interest on said $ 5,000 against C. T. Smith, trustee.
¶6 Verdict was returned and judgment entered for the plaintiff. The defendants and each of them appeal.
¶7 We will consider the appeal of C. T. Smith, trustee, first. This case was in this court on a previous appeal. Judgment on the first trial was entered against Topp and Gum, they appealed, and the cause was reversed. This court held that the trial court had misinterpreted the contract, had improperly excluded competent evidence offered by the plaintiffs, and admitted incompetent evidence offered by the defendants. Under the interpretation given to the contract in that opinion, which is binding on this court in this second appeal, the representations made by Smith in the contract as to the production of the individual wells were held to be material, and left for new trial the question of whether or not there were any material misrepresentations made therein. Gum v. First National Bank, 116 Okla. 263, 244 P. 187; Bell v. Tackett, 134 Okla. 164, 272 P. 461.
¶8 Plaintiff in error Smith alleges that the interpretation given to the contract in the first appeal is grossly incorrect, and that the court should on this appeal reinterpret this contract and relieve him from the interpretation so given. An examination of the opinion and the contract clearly discloses that the interpretation there given to the contract is correct, and we adhere thereto. Powell v. United Mining & Milling Co., 107 Okla. 170, 231 P. 307; Wade v. Hope, 89 Okla. 64, 213 P. 549.
¶9 Smith next contends that the court erred in admitting evidence tending to prove that Graham was the agent of Smith in this transaction, for there was no allegation in the petition that Graham was his agent and there was no allegation or proof that Graham had misrepresented anything to Gum and Topp. He also complains that no instruction was given covering the proof of agency, though in his requested instruction No. 3 he tendered such an instruction. We think these contentions are not well founded, for the apparent purpose of establishing the agency of Graham was to show that Gum and Topp had made known to Smith through his agent, Graham, and had so brought to the knowledge of Smith, the misrepresentations in his listed productions of the wells, and that they were demanding the return of the $ 5000. Smith, by answer, denied he received notice of this complaint, but on the witness stand admitted that this information had been brought to his knowledge, so all the proof with reference to Graham became immaterial, and there remained no issue thereon which would justify the court in instructing the jury with reference to the agency of Graham.
¶10 Smith contends that his demurrer to plaintiff's evidence should have been sustained. With this we cannot agree, for there was substantial evidence tending to prove that the production of the wells complained of was not substantially the production which Smith, in the contract, represented that they had. Smith in his original brief in this cause stated his contention as to the crux of this lawsuit in the following language:
"Were the misrepresentations, if any, in the exhibit regarding the daily production of the individual wells material under the terms and provisions of the contract?"
¶11 The first appeal determined that under the contract a material misrepresentation of the individual well productions would be material. Substantial evidence was introduced that the production of certain of the wells was materially different from the production listed for them in the contract. The demurrer to plaintiffs' evidence was properly overruled. The court did not commit error in submitting the case to the jury.
¶12 It is next contended that the court improperly excluded competent evidence. Smith offered evidence to show custom and usage with reference to the sale of production, which tender was by the court refused....
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