First Nat. Bank & Trust Co. of Muskogee v. Muskogee Discount House of Muskogee

• Decision Date: 28 May 1963
• Docket Number: No. 39981,39981
• Citation: 382 P.2d 137,1963 OK 130
• Court: Oklahoma Supreme Court
• Parties: The FIRST NATIONAL BANK AND TRUST COMPANY OF MUSKOGEE, Oklahoma, a National Banking Association of Muskogee, Oklahoma, Trustee of the Annie S. Cook Trust, Plaintiff in Error, v. The MUSKOGEE DISCOUNT HOUSE OF MUSKOGEE, Oklahoma, a Co-partnership composed of Ernest Day and James V. Rogers, Defendant in Error.

Page 137

382 P.2d 137

1963 OK 130

The FIRST NATIONAL BANK AND TRUST COMPANY OF MUSKOGEE Oklahoma, a National Banking Association of Muskogee, Oklahoma, Trustee of the Annie S. Cook Trust, Plaintiff in Error, v. The MUSKOGEE DISCOUNT HOUSE OF MUSKOGEE, Oklahoma, a Co-partnership composed of Ernest Day and James V Rogers, Defendant in Error.

No. 39981.

Supreme Court of Oklahoma.

May 28, 1963.

Syllabus by the Court

1. As a general rule, fraud cannot be predicated upon misrepresentations of law or misrepresentations as to matters of law.

2. Where there is an entire lack of evidence to sustain the judgment of the trial court, the judgment will be reversed on appeal.

Appeal from the District Court of Muskogee County; C. F. Bliss, Jr., Judge.

Action in forcible entry and detainer by the First National Bank and Trust Company of Muskogee, Trustee of the Annie S. Cook Trust, against Muskogee Discount House, a Co-partnership composed of Ernest Day and James V. Rogers. From a judgment for defendant, plaintiff appeals. Reversed and remanded with directions.

R. M. Mountcastle, Muskogee, for plaintiff in error.

Anthis & Gotcher, Douglas Garrett, Muskogee, for defendant in error.

JACKSON, Justice.

This action in forcible entry and detainer began in the City Court of Muskogee. After judgment for defendant, an appeal was taken to the district court of Muskogee County, where verdict and judgment were again for defendant, and plaintiff appeals.

Plaintiff in the trial courts (and plaintiff in error here) was the First National Bank and Trust Company of Muskogee, as trustee of the Annie S. Cook Trust, hereinafter referred to as plaintiff. Defendant in the trial court was Muskogee Discount House, a co-partnership composed of Ernest Day and James V. Rogers, hereinafter referred to as defendant.

In view of our conclusions herein, no extended summary of the pleadings and evidence is necessary.

The plaintiff alleged in substance that it was the trustee-owner of a certain business property in Muskogee which it had leased to defendant under a written lease containing an option to terminate upon payment to defendant of $250.00 and the giving of a thirty-one day notice as set out in the lease; that it had exercised its option to terminate, but that defendant refused to surrender possession of the premises, and still unlawfully detained it.

In answer, the defendant admitted the execution of the lease but alleged in substance that the execution was procured by 'deceitful, false and fraudulent' representations of plaintiff's agent with regard to the meaning and effect of the option to terminate. The lease contract is not otherwise assailed or contested.

The evidence of the defendant was that at the time of execution of the lease defendant was in possession of the premises as sub-lessee under a prior lease. Defendant alleged and presented testimony that the new lease was supposed to be identical in terms with the prior one.

The lease provisions concerned are contained in paragraph VIII, as follows:

'This lease may be terminated at the option of the Party of the First Part should the Party of the Second Part commit any act which shall cause the Party of the First Part to become liable, either civilly or criminally, and that Party of the Second Part will obtain, where necessary, permits or authority from any city, county, state or federal government, for the operation of the business so conducted, and will abide by all of the lawful rules and regulations, ordinances, and laws or enactments governing said business; and in this connection, it is further understood and agreed that the padlocking of said building, the filing of an information in the state courts, or a grand jury indictment in the federal courts, or a conviction in the City Court of Muskogee, or the police court, or a default by the defendant in appearance before these courts shall be an admission by the Lessee that this paragraph has been violated, and the lessor herein shall have the right, at its option, to declare this lease at an end and of no force and effect, and to reenter and take immediate possession of said property. And said Party of the First Part may terminate this lease at its option upon payment of the consideration of Two Hundred Fifty ($250.00) Dollars to Party of the Second Part and Party of the Second Part shall surrender peaceable possession of the premises to the Party of the First Part thirty-one days following the first day of the month following the month in which notice is given terminating this lease.' (Emphasis supplied.)

Defendant agrees that the first sentence quoted...