Florence v. Thompson

• Decision Date: 18 September 1923
• Docket Number: Case Number: 14254
• Parties: FLORENCE, Adm'r, v. THOMPSON.
• Court: Oklahoma Supreme Court

1923 OK 615

218 P. 800

92 Okla. 156

FLORENCE, Adm'r, v. THOMPSON.

Case Number: 14254

Supreme Court of Oklahoma

Decided: September 18, 1923

Syllabus

¶0 1. Appeal and Error--Trial--General Finding--Effect.

When a case is tried by the court without a jury and a general finding is made upon the oral testimony, such finding is a finding of every special thing necessary to be found to sustain the general finding and is conclusive upon the Supreme Court on appeal as to all doubtful and disputed questions of fact.

2. Joint Adventures--Fiduciary Relation--Consideration.

The relation between parties to a joint adventure is fiduciary in its character, and requires the utmost good faith in all the dealings of the parties with each other. A contract of joint adventure is sufficiently supported by a consideration growing out of the mutual promises of the parties.

3. Frauds, Statute Of--Real Estate Partnership--Evidence of Interest.

An oral partnership agreement to share in the profits and losses arising from the purchase and sale of real estate is not within the statute of frauds: and the existence of such partnership and the interest of the members of the firm therein may be established by parol evidence.

Error from District Court, Garvin County; W. L. Eagleton, Judge.

Commissioners' Opinion, Division No. 5.

Action by D. Lee Thompson against Jack Florence, Administrator of the estate of A. S. Kelly, deceased, et al., to establish an interest in a certain oil and gas lease alleged to have been owned jointly by the plaintiff, D. Lee Thompson, and the deceased, A. S. Kelly. Judgment rendered in favor of the plaintiff D. Lee Thompson, and defendants appeal. Affirmed.

Bowling & Farmer, for plaintiffs in error.

Blanton, Osborn & Curtis, for defendant in error.

PINKHAM, C.

¶1 This action was commenced in the district court of Garvin county, Okla., by the defendant in error, D. Lee Thompson, as plaintiff, against plaintiffs in error, Jack Florence, as administrator of the estate of A. S. Kelly, deceased, Mayne Florence, Ida C. Fitzgerald, Susie Joe Thompson, Arthur F. Kelly, Luther Kelly, et al., defendants in the court below.

¶2 The parties will be referred to as they appeared in the court below. The petition alleges, among other things, that on the 10th day of July, 1920, H. Harrison Fitzgerald, being the owner of certain described lands, joined by his wife, Ida C. Fitzgerald, defendant herein, made, executed, and delivered to A. S. Kelly a certain oil and gas lease, conveying unto the said A. S. Kelly certain rights in and to said lands for the purpose of prospecting the same for oil and gas mining purposes; that on the 10th day of July, 1920, the said A. S. Kelly made and executed and delivered to one E. L. McCrummen, his certain assignment of an undivided one-half of all the rights and interests arising under and by virtue of the terms of said lease; that the said A. S. Kelly is a brother-in-law of plaintiff, and that in the making and negotiating of said transaction the said A. S. Kelly was acting for the benefit of himself and this plaintiff; that the said plaintiff and the said A. S. Kelly were engaged in buying, selling, and holding certain oil and gas leases as partners, and that plaintiff was present and assisted in negotiating said transaction between the said A. S. Kelly and the said H. Harrison Fitzgerald; that the said A. S. Kelly at said time was indebted to this plaintiff, and that it was understood and agreed between the said Kelly and this plaintiff that any and all funds advanced by the said A. S. Kelly to the said H. Harrison Fitzgerald should be the joint funds of plaintiff and the said A. S. Kelly, or should be paid by the said A. S. Kelly and account rendered between the said Kelly and this plaintiff; that pursuant to said understanding and agreement the said A. S. Kelly advanced to the said H. Harrison Fitzgerald the sum of $ 1,000, and that it was understood and agreed between himself and the said A. S. Kelly that for the convenience in handling said transaction, the rights conveyed in said oil and gas lease instrument should be conveyed to the said A. S. Kelly, of record, and that the said A. S. Kelly would hold said rights so conveyed for the use and benefit of himself and of this plaintiff, and that each would be equally interested therein; that said rights were so conveyed to the said Kelly and were taken and held by the said Kelly beneficially and in trust for the use and benefit of himself and of this plaintiff in equal shares and that the said A. S. Kelly recognized at said time and subsequently the rights of this plaintiff to the extent of an undivided one-half interest in and to said lease; that on said 10th day of July, 1920, the said A. S. Kelly by agreement with the plaintiff assigned to the defendant E. L. McCrummen, an undivided one-half interest in and to all the rights conveyed under said oil and gas lease; that thereafter the said Kelly beneficially and in trust held the title to the remaining undivided one-half interest in all the rights so conveyed by the said H. Harrison Fitzgerald, to the said A. S. Kelly, for the use and benefit of himself and this plaintiff in equal shares, and that plaintiff thereby became seized of an equitable title to the undivided one-fourth interest in and to all of the rights conveyed under and by virtue of the terms and conditions of said oil and gas lease. That the said A. S. Kelly died intestate on January 19, 1921, and that he left surviving him as his sole and only heirs the following persons, defendants herein; Ida C. Fitzgerald. Mayne Florence, Susie Joe Thompson. A. F. Kelly, and Luther Kelly, each of whom succeeded to an undivided one-fifth interest in and to all the rights of which the said A. S. Kelly died seized in and to said lands. That the said last named defendants, and the defendant Jack Florence, as administrator of the estate of the said A. S. Kelly, deceased, refused to recognize the rights of this plaintiff in and to said undivided one-fourth interest in all the rights so conveyed in said oil and gas lease, and are asserting right, title, and interest, adverso to the right, title, claim, and interest of this plaintiff in and to the same; and that the plaintiff and said named defendants, heirs aforesaid, on the 7th day of January, 1922, made, executed, conveyed, and assigned to J. A. Harris, W. H. Harris, J. W. Cody, John M. Claypool, and C. T. Rice, certain interests in and to the rights so conveyed by the said Fitzgerald under and by virtue of said oil and gas lease, and that thereafter the said Cody, Claypool, and Rice made, executed, and delivered an assignment to the defendants J. A Harris and J. W. Harris of all of their right, title, and interest and estate arising under and by virtue of the contract and assignment hereinabove mentioned; but that the said plaintiff and said heirs of the said A. S. Kelly, deceased, retained, undetermined and undivided, certain interests in and to said lands, and that all the interest so retained, standing in the name of A. S. Kelly, deceased, is held by the said heirs above mentioned, as trustees for the use and benefit of themselves and of this plaintiff in equal shares, and that one-half of all rights, title, and interest is held by the said heirs in trust for the use and benefit of themselves and of this plaintiff, and that plaintiff is entitled to a conveyance thereto from said heirs and to a decree of the court determining said trust.

¶3 In their answer defendants denied each and every allegation contained in the petition, except that it is admitted that the defendant Jack Florence is the administrator of the estate of A. S. Kelly, deceased; and that on the 10th day of July, 1920, H. Harrison Fitzgerald and his wife, Ida C. Fitzgerald, executed and delivered a certain oil and gas lease to the said A. S. Kelly; that the said Kelly executed and delivered to E. L. McCrummen an assignment of an undivided one-half interest in said oil and gas lease; that the said A. S. Kelly died intestate on or about the 19th day of January, 1921, and left surviving him as his sole and only heirs, Ida C. Fitzgerald, Mayne Florence, Susie Joe Thompson, Arthur F. Kelly and Luther Kelly.

¶4 Upon a trial to the court the issues were found in favor of the plaintiff, and judgment was duly entered substantially as prayed for, to reverse which this proceeding in error was commenced.

¶5 Counsel for plaintiff in error in their brief, state their grounds for reversal under two propositions: First, that the evidence was insufficient to sustain the plaintiff's theory of "a joint adventure;" and, second, that the case comes clearly within the statute of frauds, and the court erred in admitting the evidence.

¶6 The record discloses that the deceased and the plaintiff, who were brothers-in-law, were partners or joint adventurers in buying and selling oil and gas leases; that prior to procurement of the oil and gas lease in question, the Fitzgerald lease, they had acted together attempting to secure leases from various parties, and that in one instance they obtained an oil and gas lease for which each party contributed $ 1,000, and that the title in...